Poyzer and Tritton and Anor

In *Poyzer and Tritton and Anor* [2013] FamCA 203, the Family Court of Australia considered an application by the husband, Mr Poyzer, seeking orders that no interest be payable on monies owed to the wife, Ms Tritton, under final property settlement orders made on 3 August 2010. The husband also sought to have certain erroneous payments made to the wife treated as partial payment of the outstanding sum. The wife sought payment of the agreed outstanding sum plus interest, and for the calculation of that interest to be referred to an officer of the Court.

The primary legal issue before the Court was whether interest should be payable on the sum ordered to be paid by the husband to the wife, and if so, from what date. This question was complicated by the husband's assertion that he was prevented from paying the principal sum due to a lien asserted by a third party, B Pty Ltd, over the funds intended for payment. The Court also considered the husband's claim that he had erroneously paid an additional $1,400 to the wife via standing order, which he sought to have offset against the principal debt.

The Court determined that the husband's inability to pay the principal sum was due to the lien asserted by B Pty Ltd, which prevented him from accessing the necessary funds. The Court found that the husband had made reasonable efforts to pay the wife, including offering a substantial cash payment and seeking agreement on how to deposit funds, but these efforts were frustrated by B Pty Ltd's stance. Applying section 117B(2) of the *Family Law Act 1975* (Cth), which allows for the disapplication of interest where it would be inequitable to enforce it, the Court concluded that it would be inequitable to require the husband to pay interest from 13 August 2010, given the circumstances preventing payment. The Court also found that the $1,400 paid in error by standing order should be treated as a partial payment towards the principal sum owed.

Consequently, the Court ordered that no interest was payable by the husband on the monies owed to the wife as a result of the final property orders from 13 August 2010. The husband's application concerning the erroneous payments was also granted, with the $1,400 to be treated as a partial payment. The Court dismissed the husband's application in its entirety, and the question of costs was reserved.