Poyzer and Tritton and Anor

[2013] FamCA 203

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON AND ANOR [2013] FamCA 203

FAMILY LAW – PROPERTY SETTLEMENT – where final orders have been made concerning the distribution of the matrimonial property – where the husband was prevented from paying the interest owing on that sum by the wife – consideration of section 117B(2) of the Family Law Act 1975 (Cth) – order that interest is not payable on the money payable under the final property orders

Family Law Act 1975 (Cth) s 117B

Family Law Rules 2004 (Cth) r 17.03

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

INTERVENOR: B Pty Ltd

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 4 April 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 February 2013 and
14 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INTERVENOR: Mr Haebich

SOLICITOR FOR THE INTERVENOR: Sykes Bidstrup

Orders

1. Paragraph 2 of the husband’s Application in a Case filed on 7 November 2012 is dismissed.

2. No interest is payable by the husband on the monies owed to the wife as a result of the final orders of 3 August 2010 from 13^th day of August 2010.

3. The question of costs is reserved to a date to be fixed should the parties be unable to reach agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poyzer & Tritton and Anor 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 ADELAIDE

FILE NUMBER: ADF 1063  of 2001

Mr Poyzer

Applicant

And

Ms Tritton

Respondent

And

David M Davidson Pty Ltd

Intervenor

REASONS FOR JUDGMENT

Introduction

1. On 11 February 2013 I heard submissions, inter alia, on Applications in a Case filed by the husband on 7 November 2012 (Document 443) and filed by the wife on 23 November 2012 (Document 451).  I reserved my judgment on these two Applications in a Case.

2. On 13 March 2013 the mother filed documentation which sought to amend her Application in a Case (Document 458, supported by affidavit Document 459), despite the fact that I had already reserved my judgment on the application in its initial form. 

3. On 14 March 2013, I reopened the wife’s Application in a Case.  I then reserved my judgment once again. 

The Husband’s Application in a Case

1. The husband filed this Application in a Case on 7 November 2012 (Document 443).  The orders sought are:

   1.        That no interest is payable on moneis [sic] owed to the ex wife as a result of the final orders of 3/8/2010 from the 13^th day of August 2010

   2.        That fund erroniously [sic] paid to wife by standing order on the 23^rd day of July and the 6^th day of August 2010 be treated as partial payment to the ex wife in reduction of monies owed to ex wife pursuant to the orders of 3/8/10

   3.        I seek orders in relation to a solicitors [sic] lien

   4.        That the application be heard on the existing hearing on 14/11/12

1. The affidavit filed in support of this Application in a Case by the husband on 7 November 2012 (Document 444) explains the husband’s application.  It provides:

   In relation to orders sought No 1, I say

   1.1      I have been unable to pay [Ms Tritton] the remaining money owed to her pursuant to the final orders of 3/8/10 because of a lien asserted by [B Pty Ltd] over those funds.

   1.2      For some time prior to the appeal of the 7^th of August 2012 the only avenue open to me to pay [Ms Tritton] was to mortgage the [business] at [C suburb], I couldn’t pay her because of the lien and paid no real attention to the issue of funding other than to pressure the Bank to get it in place.

   1.3      However I would have been able to pay [Ms Tritton] the balance of the funds within a week of the final order of 7/8/12.

   1.4      I could have done this by drawing down on an existing mortgage over my property at [P property] as well as taking profits from my business, the balance could have been made up with a loan from my partner [Dr F] that he agreed to in June by securing my interest in the [business] Centre which he is part owner of.

   He agreed to lend me the money to buy a house in the UK, which I did not proceed with.  In any event I could have paid her on the 3^rd of September 2012 [see attached letter from the bank]

   1.5      I have bank statements to prove my ability to draw down money but have not attached them to this affidavit because I say they are private and not for the eyes of [Ms Tritton], I ask that they be available only to the Court, should the court wish to view them. 

   1.6      I made very effort [sic] to pay funds to [Ms Tritton] including offering her $100,000 in cash, based on the fact that the monies claimed by [B Pty Ltd] could have been paid without the $100,000, I also emailed both parties asking for an agreement from them where to put funds.  I did not get any response on either proposal.

   1.7      [B Pty Ltd’s] lawyer told me that they would not agree to any funds being deposited into any bank account over which they had no control.

   1.8      At no time has [Ms Tritton] suggested any alternatives to me.

   1.9      In any event, whatever the availability of funds I could not, and still cannot pay her because of the existence of the lien, which is none of my doing

   1.10     Attached and marked with the letters AGP1 is a letter from the CBA regarding funding.

   Attached and marked with the letter AGP2 is a copy of the final order of 3/8/10

   In relation to order sought number 2 I say

   2.1      A standing order was in play to pay [Ms Tritton] $1,000 per week I erroneously didn’t cancel this until $1,400 had been paid to [Ms Tritton], despite being aware of this she did not offer to pay this money back to me.

   2.2      I ask the Court to order this amount be deducted from the figure owed to [Ms Tritton] by me.

   2.3      Although this is a relatively small amount considering the huge burden of the cost on myself of this action brought by [Ms Tritton], as well as the burden of the huge amounts I have to borrow to pay her and others debt, it is non [sic] the less a significant amount to me and it is fair and reasonable for this money to be considered as partial payment to [Ms Tritton]

   Attached and marked with the letters

   AGP3 is a copy of bank statements showing those payments to [Ms Tritton]. 

   AGP4 is an email from [Ms Tritton] agreeing that $553, 342.93 has been paid to [Ms Tritton]

   AGP5 is a copy of the settlement statement for the land at [H Street, C suburb], which shows funds flowing to [Ms Tritton]

   Subject to orders, the funds to pay [Ms Tritton] are available to her on 17/11/12, one cheque is ordered for $414,658 [which is agreed] plus a further cheque for the interest component, which cannot be worked out until the end of the hearing of 16/11/12

   I seek orders for the destination of these cheques

1. The wife filed a response to this Application in a Case on 12 November 2012 (Document 445).  The orders sought are:

   1.        That the husband settles without further delay the sum of $414,658 as agreed, plus interest owing to the wife.

   2.        That the interest is calculated from settlement day, 17^th September 2010, up to and including the day of payment.   

   3.        That the husband combines the outstanding Judgment funds owing, together with the interest, in one cheque. 

   4.        To facilitate expediency, and to prohibit any further delay or dispute, the Honourable Court refers the interest payable calculation attached hereto, an Officer of the Court, for confirmation. 

   5.        That the wife deposits the entire sum on term deposit in a secure bank account, in her sole name.

   6.        That the Honourable Court define the orders made on 3^rd August 2010, at paragraph 16, in which the wife is fully indemnified, or whether further documentation is required from the husband regarding the same.

2. The affidavit filed in support of this response to the Application in a Case by the wife on 12 November 2012 (Document 446) explains the wife’s position.  It provides:

   16.      The agreed figure owing is $414,658.

   17.      Interest is payable on the unpaid judgment sum from settlement day, 17^th September 2012, up to and including the day of payment received.

   18.      Mr Haebich of Sykes Bidstrup, the solicitor acting for [B Pty Ltd], has informed both my ex-husband and I that the “Company” has a lien over the outstanding Judgment funds.

   19.      On 24^th August 2012, I wrote to Mr Haebich at Sykes Bidstrup informing him that if I received any funds from my ex-husband I would deposit them into a secure bank account.

   20.      My ex-husband has not informed me that the funds were available from the Commonwealth Bank of Australia at any time. 

   21.      Nevertheless, my ex-husband has had the facility, in place since 22^nd February 2012, as ordered by the Honourable Justice Dawe, so that he can pay funds outstanding into a secure bank account in joint names.  Mr Randle chose an interest bearing account at the Westpac Banking Corporation, and to date, the husband has not deposited any monies at all into that account.

   22.      I say that I was forced to resign from my employment at the end of February 2012, due to the voluminous amount of work I have had to undertake relating to my ex-husband’s Appeal. 

   23.      My health has suffered as a result of my predicament.

   24.      By the time the Appeal was heard on 6^th August 2012, I was in apposition to provide information to the Full Court that my ex-husband had succeeded in misleading the Court regarding the valuation process.  Consequently, I say my ex-husband has made a conservative financial gain of at least two million dollars more in assets, than calculated at the time of Judgment, not including the ongoing and substantial income generated by the [business] centre.

   25.      I say the valuation of the [business] centre to be in the vicinity of $5,000,000.  

   26.      I say part of the loan approved by the Commonwealth Bank of Australia is also for financing a new building extending the [N Centre], of which the husband has “re-acquired” a 51 [percent] interest.

The Wife’s Application in a Case

1. The wife filed two Applications in a Case on 23 November 2012 (Documents 449 and 451).  The former (Document 449) concerns a dispute between the wife and her former solicitors.  This application is ongoing.  The latter (Document 451) seeks orders:

   1.        That the husband pay the wife the sum of $12,558.31 within seven (7) days being interest outstanding from the date of the Appeal to 16^th November 2012.

   2.        The matter be heard urgently before the Honourable Justice Dawe as the husband leaves the country on 4^th December 2012.

1. The affidavit filed in support of this Application in a Case by the wife on 23 November 2012 (Document 452) explains the wife’s position.  It provides:

   Outstanding Interest

   20.      On 16^th November 2012, I received a bank cheque from the husband in the sum of EIGHTY SIX THOUSAND FIVE HUNDRED AND FORTY SIX DOLLARS AND FOURTEEN CENTS [$86,546.14].

   21.      On instructions, I forwarded a calculation, by email, as a word document, on Tuesday 13^th November 2012, after the husband emailed me and insisted I make the calculation, because he found it too difficult.

   22.      The husband, could simply open the document and type in any adjustment for my consideration, and forward it back to me, of which I informed the husband. 

   23.      In order to dispute further, the husband has since made a unilateral calculation and has not bothered to send me a document explaining how the calculation was made in legible form.

   24.      Annexure “AG4” of husband’s affidavit, filed 7^th November 2012, confirms the dates and amounts of judgment sums paid to me.

   25.      I have now done a recalculation in accordance with these undisputed amounts and dates, to arrive at the full interest owing to me up to 16^th November 2012, the date I received the cheques from the Commonwealth Bank of Australia.  Marked with the letter “A” and annexed hereto is a true copy of the calculation of interest owing to me from 6^th August 2012 up to and including 16^th November 2012.

   26.      The outstanding amount still owing is $12,558.31.

   Interest Outstanding

   27.      The total sum of the interest received by me is also subject to dispute as per paragraph six of the order of the Court made on 14^th November 2012.

   28.       The dispute concerns the refinancing funds available to the husband from the Commonwealth Bank of Australia. 

   29.      I provided Mr Haebich with an assurance that any funds I received from the husband would be placed into a secure bank account on 24^th August 2012. 

   30.      I emailed the husband on 13^th September 2012, asking him if the Commonwealth Bank of Australia funds were available.

   31.      I did not receive a reply.

   32.      On 14^th September 2012, I emailed the husband again asking if the Commonwealth Bank of Australia funds were ready, and I informed him that I had provided Sykes Bidstrup, following their request, with an assurance that any funds I received would be deposited into a secure bank account, and that they were content with this information.

   33.      I did not receive a reply to this email either.

   34.      Once again, the husband continues to lie to the Court, as he did on 14^th November 2012.

   35.      I say that I have not been informed at any time by the husband that the Commonwealth Bank of Australia funds were available. 

   36.      I say that the husband has always been in possession of my bank account details and could have, at any time, transferred any funds to me, or provided to me a cheque. 

   37.      I again refer the Court to my affidavit filed 12^th November 2012, at paragraph 21, regarding the joint bank account, in place since 22^nd February 2012, as ordered by the Honourable Justice Dawe, and chosen by Mr Randle.

   38.      With respect, it seems that the decisions of the Honourable Court and the erring of the court in supporting me in these proceedings seem to be based on the assertions of the husband, in the terms, “I could have” or “I would have” and his lies to the Court.

   39.      I say “I could have” or “I would have” provide a formal undertaking regarding the security for my “hard-fought-for” judgment monies, but that was not sought, by anyone. 

   40.      I continue to be denied earning interest in the full account of my judgment funds, in my own bank account.”

1. The wife filed a further affidavit on 29 January 2013 (Document 454).  Relevant to this Application in a Case, the affidavit provides:

   Interest owed to the wife from Judgment Monies

   27.        I have sought orders from the Court that the husband pay me outstanding interest in the sum of $12,558.31, already documented in my affidavits to above.

   28.        Failing that, I seek to secure those funds from [B Pty Ltd] because of his conduct in general, as already documented in previous affidavits and herein.

   29.        I point out to the court that I am out of pocket not only the $12,558.31 but I could have deposited this sum with other funds into an account to ensure as much interest as possible is earned by me.

1. The husband filed a response to this Application in a Case on 8 February 2013 (Document 455).  The orders sought are:

   1.        That 1 in the application be dissmissed [sic]

1. The affidavit filed in support of the husband’s response to the wife’s Application in a Case on 8 February 2013 (Document 456) provides:

   I have been advised to file this affidavit along with supporting documents so that there can be no doubt about the existence of a lien along over the funds due to [Ms Tritton] as a result of the final orders of 3/8/10.

   I have been aware of the asserted lien since some time in mid to late 2011

   1.        Attached and marked with the letter A is a copy of a letter dated (December 2011, from Sykes Bidstrup – notification of assertion of a lien

   2.        Attached and marked with the letter B is a copy of a letter from [Ms Tritton’s] then solicitor Mr A Jordan which refers to the $200,000 costs order.

   3.        Attached and marked with the letter C is a letter dated 14^th August 2012 which continues to assert a lien.

   4.        Attachment B threatens to; “sequestrate my estate” attached A threatens; “should such payment be made to [Ms Tritton] such that the money is not recovered by [B Pty Ltd], I anticipate instructions to pursue you for that amount”

   5.        I say the threats and the continuation have caused me a deal of distress when I should be recovering from a myocardial infarction.

   6.        I say that I have empathy and sympathy for the position that [Ms Tritton] finds herself in but the lien is not of my doing!

   7.         I say that from the time of the order of 22^nd of February 2012 I made very extensive efforts to raise the money to deposit the $414,750 into the proposed joint bank account.  I applied to the Bank of South Australia the Peoples Credit Union as well as the CBA.  The CBA was the fastest cheapest route but still took 8 months to approve the new loan.  [See exhibit AGP1 of my affidavit filed 7^th November 2012 being a letter from the CBA].  All the time I was aware that [B Pty Ltd] would not accept any form of account where they had no control.  I point to the last two pages of [Ms Tritton’s] affidavit filed 12 November 2012, for the convenience of the court I attach a copy of that letter and mark it with the letter D

   8.        Despite my best efforts and through no fault or delay caused by myself, I did not have the resources to put the $414,750 into a joint account until around the time of the appeal hearing, I decide to seek orders from the court to protect myself from the lien.

   9.        I made several attempts to get some kind of agreement with [Ms Tritton] attached and marked with the letter E, is just one, it is a copy of an email I sent to both [Ms Tritton] and Sykes Bidstrup there was no meaningful reply from [Ms Tritton] and none at all from Sykes Bidstrup.

   10.      Unless it suits [Ms Tritton] she does not reply to communication, attached and marked with the letter F is a copy of an email where I offered to settle this matter, there was no reply.

   11.      There are many things in [Ms  Tritton’s] affidavit that I do not agree with, I haven’t dealt with them here because I think what she says has no relevance to the issue before the court, if the court does put some weight on these issues then I seek the opportunity to give my side of the story…

   …

   13.      There has been no mention about the $1,400 over payment to [Ms Tritton] in any of the documents filed by her.  There is no argument that it was paid to her.

2. The amended Application in a Case filed by the wife on 12 March 2013 (Document 458) alters the orders sought by the wife.  The struck out order is no longer sought by the wife.  The underlined orders below are new.   

   1.        That the husband pay the wife the sum of $12,558.31 within seven (7) days being interest outstanding from the date of the Appeal to 16^th November 2012.

   2.        The matter be heard urgently before the Honourable Justice Dawe as the husband leaves the country on 4^th December 2012.

   3.        That Sykes Bidstrup, Barristers & Solicitors be responsible for the payment or any portion thereof of the outstanding interest in the sum of $12,558.31, should the court see fit to release both the husband and [B Pty Ltd]. 

   4.        The matter be heard before the Honourable Justice Dawe on 14^th March 2013.

1. The affidavit filed in support of the amended Application in a Case on 12 March 2013 (Document 459) claims the following purposes:

   (a)       to produce the documents required by Her Honour at the hearing on 11^th February 2013, and I have done so by incorporating them in (b) below;

   (b)      to set out a short timeline of events that, as a consequence has the effect, I believe, of clarifying the position, the actions, or the inaction of all parties involved.

The Law

1. The applicable law on interest accruing on moneys to be paid by orders of this Court is contained in the Family Law Act 1975 (Cth) (“the Act”) and the Family Law Rules 2004 (“the Rules”).

2. Section 117B of the Act provides:

   (1) Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:

   (a)       the date on which the order is made; or

   (b)      the date on which the order takes effect;

   whichever is later, on so much of the money as is from time to time unpaid.

   (2)      A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:

   (a) that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or

   (b)      that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).

3. Regulation 17.03 of the Rules provides:

   The prescribed rate at which interest is payable under paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act is:

   (a)      in respect of the period from 1 January to 30 June in any year  — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and

   (b)      in respect of the period from 1 July to 31 December in any year  — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

   Note For the date from which interest is payable, see paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act.

Chronology of events relevant to this Application in a Case

1. 3 August 2010:  I handed down final property orders in this matter.  I ordered, inter alia, that the husband pay the wife $968,000 on 17 September 2010.  The husband appealed these orders.

2. 7 October 2010:  The husband paid the wife $300,000 (See Annexure A of the wife’s affidavit filed 23 November 2012 (Document 452)).

3. 5 November 2010:  The wife received $230,082 from the sale of C suburb land on 05 November 2010 (See email correspondence dated 23 August 2012 at Annexure AGP 4 and vendor’s settlement statement dated 05 November 2010 at AGP 5 of the husband’s affidavit filed 7 November 2012 (Document 444)).

4. 5 November 2010:  the sum of $3,171.28 was received and garnished by the Child Support Agency (See Annexure A of the wife’s affidavit filed 23 November 2012 (Document 452)). 

5. 17 November 2010:  the wife received $89.65 from the sale of the C suburb land. 

6. 9 December 2011:  Mr Haebich of Sykes Bidstrup sends the husband a letter.  The husband understands the letter to mean that any funds that he was to pay to the wife are the subject of a solicitor’s lien by Mr Haebich’s client B Pty Ltd, the former lawyer of the wife. 

7. 12 January 2011:  the wife received $20,000.00 as partial payment of the unpaid judgment sum. 

8. 22 February 2012:  I made orders, inter alia, that the husband pay the remaining unpaid judgment sum of $414,750.00 into “an interest bearing account in the name of the wife and husband at the Westpac Banking Corporation.”  

9. 6 August 2012:  the husband abandoned his appeal of my final property orders.

10. 14 August 2012:  Mr Haebich sends a letter to Mr Randle, then counsel for the husband.  It seeks to put the husband on notice as to the clients lien.  It refers to the lien extending “to funds to be paid by [Mr Poyzer] to [Ms Tritton] under settlement” and does not distinguish or separate the interest payment from this class of “funds” (See Annexure C of the affidavit of the husband filed 06 February 2013 (Document 456)).

11. 24 August 2012:  the wife faxes Mr Haebich a letter stating that “the funds will be deposited into a secure bank account as per previous orders made in the Family Court of Australia.” (see Annexure CH1 of affidavit of Mr Haebich filed on 06 February 2013 (Document 457)).

12. 3 September 2012:  Mr U of the Commonwealth Bank of Australia confirms that the husband has had funds made available to him via an increased loan from this date (See letter dated 16 October 2012 at Annexure AGP 1 of the husband’s affidavit filed 7 November 2012 (Document 444).  The wife claims that she was never made aware of the husband’s capacity to pay the remainder owing to her (See paragraph 35 of the wife’s affidavit filed 23 November 2012 (Document 452)).

13. 12 September 2012:  the husband sends an email to both the wife and Mr Haebich of Sykes Bidstrup.  He seeks instructions on what to do with the funds given the existence of the lien.  He requests joint instructions to that effect.  At the hearing, the husband stated that he received no reply from either recipient of this letter (See Annexure E of the affidavit of the husband filed 06 February 2013 (Document 456)).

14. 13 September 2012:  the wife emails the husband asking if the funds were available to satisfy the remainder of the payment owing to her.  (See Annexure C of the wife’s affidavit filed 12 March 2013 (Document 459)).  The wife claims to have received no reply to this email.

15. 13 September 2012:  the wife claims that the husband telephoned her during the afternoon and told her that the funds from the Commonwealth Bank of Australia were not yet ready.  It is unclear whether the husband and the wife discussed the issue of whether the husband could pay the unpaid judgment funds regardless of this funding.   At the second hearing date on 13 March 2013, the husband asserted that he did have an alternative funding arrangement. 

16. 14 September 2012:  the wife emails the husband again.  She states that she has provided Mr Haebich of Sykes Bidstrup with an assurance that any funds received would be deposited into a secure bank account (See Annexure D of the wife’s affidavit filed 12 March 2013 (Document 459)).  Importantly, the wife’s email claims that Sykes Bidstrup “were content with this information.” It is unclear why the wife believe Sykes Bidstrup “were content with this information” given that they did not reply to the letter until 5 days later.  The wife claims to have received no reply to this email from the husband. 

17. 19 September 2012:  Mr Haebich of Sykes Bidstrup sends the wife a letter asking for more specific information and suggesting the funds be deposited into a joint bank account in the names of the wife and his client B Pty Ltd (see Annexure CH2 of affidavit of Mr Haebich filed on 06 February 2013 (Document 457)).  Mr Haebich asserts that no reply was received.

18. 7 November 2012:  the husband filed his Application in a Case on 7 November 2012 (Document 443).

19. 16 November 2012:  the remaining amount owing to the wife ($414,657) is received (See Annexure A of the wife’s affidavit filed 23 November 2012 (Document 452)). 

20. 23 November 2012:  the wife filed her Application in a Case (Document 451). 

Consideration

Consideration of Paragraphs 1 of the Husband’s Application in a Case and Paragraphs 1 of the Wife’s Application in a Case (The Question of Interest)

1. The wife calculates the interest owing from the 6 August 2012 to 16 November 2012 as $11,008.29 and the interest owing prior to 6 August 2012 as $1,550.02.  The total interest claimed is thus $12,558.31 (See Annexure A of the wife’s affidavit filed 23 November 2012 (Document 452)).

2. At the first hearing date of this matter, I asked the husband whether he agreed with the wife’s interest calculations.  He informed me that he had not considered the matter as he could not conceive of a situation in which he would have to pay any interest.  At the second hearing date, the husband asserted that he did not agree with the interest calculation but offered no alternative.  As such, I accept the wife’s calculations for the purposes of this case. 

3. The main issue that forms the basis of these Applications in a Case arises out of both a lack of communication and a misunderstanding of the communication that did occur between the three actors involved in this comedy of errors.

4. The husband asserts he was able to pay the money from either August or September 2012 but was unable to receive any instructions as to where to deposit the money.  He claims that his request for this information on 12 September 2012 went unanswered.

5. The wife blames the husband for not informing her that he had the funds available from August or September 2012.  She claims that she emailed the husband requesting this information on 13 and 14 September 2012 and that she received no reply.  The necessary corollary of this argument is that, had the wife received such confirmation from the husband that the funds were available; the wife would have for some reason been spurred into action with regards to negotiating with Mr Haebich to arrange an appropriate location for the funds to be deposited. 

6. I do not understand why the wife needed confirmation from the husband that he had the funds available to enable her to fully engage with the negotiation of a location for the funds with Mr Haebich.  It defies common sense for the wife to wait until she had positive confirmation from the husband that the Commonwealth Bank of Australia funds were available before commencing the negotiations with Mr Haebich as to where the funds would be deposited, especially considering that she was aware that there may be a dispute given Mr Haebich’s letter of 19 September 2012.  Accordingly, I reject the wife’s implicit submission to that effect. 

7. The wife also blames Mr Haebich, for not cooperating with her in coming to an agreement as to where the funds should be paid.  The letter sent by Mr Haebich on 19 September 2012 to the wife, and her failure to reply to it, indicates that he is not to blame for the failure to come to an agreement as to where the funds should be paid. 

8. Mr Haebich sees the interest issue as one that is entirely extraneous to the matter on which he has been instructed, namely, the dispute over the payment of legal fees between the wife and his client, her former solicitor. 

Consideration of Paragraph 2 of the Husband’s Application in a Case

1. There is also the issue of the $1,400 that the husband claims he inadvertently paid to the wife (see paragraph 2 of his Application in a Case filed 7 November 2012 (Document 443) and paragraphs 2.1 to 2.3 of his affidavit filed same (Document 444).

2. Annexure AGP 3 of the husband’s affidavit filed 7 November 2012 (Document 443) is an extraction of two consecutive BNZA Smarter Access Account bank statements showing payments of $1,000.00 made to the wife on 23 July 2010,  30 July 2010 and 06 August 2010.  I understand the husband’s claim to be that he was no longer obligated to make these payments from the date of the final property orders on 03 August 2010.  Therefore, he claims that he is owed the total of the 6 August 2010 payment and three-sevenths of the 30 July 2010 payment, being the 3 days following the delivery of the judgment prior to the 6 August 2010 payment, which equals $428.57.  I accept $1,400.00 as the quantum of the husband’s claim. 

3. The wife has made no submissions at either hearing dates on this point.  She has filed six affidavits since the husband filed his Application in a Case on 7 November 2012, none of which address this issue. 

4. It would thus appear that the husband has paid $1400 to the wife which was not payable as spousal maintenance.

5. The husband was not able to pay the wife interest which was accumulating on the property settlement sum due to the confusion and limited communication about the solicitor’s lien claimed. 

6. Taking into account the findings in relation to the interest claim and the provisions of section 80(i)(k) of the Act, it is appropriate (and necessary to do justice) that the wife retain the overpayment.

7. Accordingly, I make orders dismissing paragraph 2 of the husband’s Application in a Case. 

Conclusion

1. The wife’s failure to respond to Mr Haebich’s letter of 19 September 2012 is the ultimate reason why the husband was unable to pay the funds prior to the 16 November 2012.  Accordingly, I make orders in terms of paragraph 1 of the husband’s Application in a Case filed 7 November 2012 (Document 443). 

2. I reject paragraph 1 of the wife’s Application in a Case filed 23 November 2012 (Document 451). 

3. The question of costs is reserved to a date to be fixed should the parties be unable to reach agreement. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 April 2013.

Associate: 

Date:  4 April 2013