Poyzer and Tritton (No 2)

[2010] FamCA 415

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON (NO. 2) [2010] FamCA 415

FAMILY LAW – PRACTICE AND PROCEDURE – leave to reopen – where the parties have filed applications seeking to reopen the evidence in final property proceedings – where some of the evidence will be relevant in making final orders – orders granting leave to reopen evidence on selected issues – parties granted leave to issue subpoenas

FAMILY LAW – PRACTICE AND PROCEDURE – application for injunction – deemed inappropriate basis to grant injunction – application declined

Family Law Act 1975 (Cth)

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 18 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: n/a

Orders

UPON NOTING the judgment is now no longer reserved and it being adjourned to 15 and 16 June 2010 for the resumption of the trial before the Honourable Justice Dawe

BY CONSENT IT IS ORDERED THAT

1. The wife provide to the husband full discovery of all documents about any employment by her on the basis instead of inspection the wife will forward photocopies of all relevant documents to the husband with the affidavit of discovery to be filed and served together with copies to the husband within fourteen [14] days from today.

IT IS ORDERED FURTHER THAT

1. Leave is given to the husband to re-open the evidence in relation to the compliant status of the Poyzer Investments Pty Ltd Superannuation Fund and its member’s entitlements and the current status of the Poyzer Superannuation Fund in relation to its member’s entitlements PROVIDED THAT the evidence includes the evidence of Mr I and Mr V and the same are to be supported by affidavits of the husband, Mr I and Mr V in relation to those issues.

2. Leave is given to the husband to re-open the evidence in relation to the proposed mortgagee sale of Lots 51 and 52, M and Lot 22, M PROVIDED THAT the same includes affidavit evidence of the husband in relation to the steps taken concerning the mortgagee sale and the evidence of the relevant officer of the Commonwealth Bank of Australia (“CBA”) indicating the steps the CBA consider necessary or available to it which would have prevented the proposed mortgagee sale and which can now prevent the proposed mortgagee sale.

3. Leave is given to the husband to issue a subpoena for documents to the relevant officer of the CBA to give evidence in relation to the proposed mortgagee sale.

4. Leave is given to the wife to issue subpoena for documents and if necessary to give evidence of the appropriate CBA employee concerning the proposed mortgagee sale if the husband does not intend to call the evidence of an officer of the CBA.

5. Leave is given to the husband to re-open the evidence in relation to the wife’s employment following upon the receipt of the discovered documents PROVIDED THAT he annexes the discovered documents to his affidavit indicating the basis upon which he seeks to have the wife recalled in relation to any dispute that then might arise in relation to such employment.

6. Leave is given to the husband to re-open the evidence in relation to the capital gain tax in relation to the sale of S property PROVIDED THAT evidence consists of the evidence of Mr I and supporting original documents relating to the basis upon which the capital gain is calculated and the basis of which the other factors such as cost of Mr D buy-out and L Unit Trust rental losses are calculated and that Mr I is available for cross-examination on that material.

7. Pending delivery of judgment the order made on 23 September 2009 is continued.

8. The matter is listed for two [2] days for receipt of further evidence (limited to the matters upon which the Court has ruled on today) to 15 and 16 June 2010 before the Honourable Justice Dawe.

9. The husband is to file and serve all affidavit material in relation to himself and witnesses upon which he seeks to rely by 4.00 pm on 1 June 2010 and that he issue subpoenas to produce documents only to be issued within seven [7] days from today and made returnable before a Registrar as soon as possible.

10. The husband to issue subpoenas by 1 June 2010 to witnesses to give evidence at the hearing on 15 and 16 June 2010 before the Honourable Justice Dawe.

11. The wife has leave to file and serve an affidavit upon which she seeks to rely by 9 June 2010.

12. If the wife seeks to issue subpoena to witnesses to give evidence then such subpoena to give evidence is to be issued by 4 June 2010 and any subpoena for the wife to issue in relation to the production of documents is also to be issued within fourteen [14] days from today.

13. Leave is given to the husband to include in his evidence particulars of the sale and distribution of all of the proceeds of sale of S property.

14. It is requested that each party make available to the Court a summary as to the amounts they have each received from the sale of properties since the proceedings commenced in 2001.

IT IS NOTED that publication of this judgment under the pseudonym Poyzer & Tritton is approved 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 POZYER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The Applications in a Case filed by the husband and the Applications in a Case filed by the wife seek to reopen the evidence for the purposes of the determination of the final property settlement proceedings by the Court. 

2. The Court is asked by the husband in the Application in a Case filed on 11 May 2010 to receive further evidence in relation to the noncompliance of the Poyzer Investments Pty Limited Superannuation Fund and its member's entitlements.  Some information concerning the superannuation funds was before the Court in some detail, but was not necessarily the subject of agreement when the matter was heard over some 50 days of trial. 

3. The information which is now sought to be put before the Court relates to a possible fine from taxation authorities.  The only basis upon which the Court would receive the appropriate information concerning the compliance of the superannuation fund and determine arguments about who is responsible for its alleged noncompliant status would involve the evidence of both the husband, the wife, Mr I and Mr V, who have been assisting the husband and provide documents in relation to the alleged noncompliance status of the fund.  It appears that the fund now only has, as an asset, the debt due to it from one of the other entities in the Poyzer Group, other assets having been rolled over out of that fund since the original evidence concluded. 

4. The husband is also asking the Court to receive further evidence in relation to the Poyzer Superannuation relating to its member's entitlements.  The wife has also drawn attention to the movement in the various superannuation funds. 

5. The Court is reserved on the judgment and it is not appropriate in usual circumstances to encourage the receipt of further evidence.  However, the possibility that a substantial debt may arise to the Australian Taxation Authority is an item which should be the subject of consideration before the final Court orders.  I propose to grant leave to the husband to reopen the evidence in relation to the compliance status of the Poyzer Investments Pty Limited Superannuation Fund and its member's entitlements, and the current status of the Poyzer Superannuation Fund relating to its member's entitlements, provided that the evidence includes the evidence of Mr I and Mr V, and that the same is supported by affidavits of the husband, Mr I and Mr V in relation to those issues. 

6. I will give timing for the affidavit evidence to be filed shortly. 

7. The husband is also asking the Court to receive further evidence in relation to a purported or proposed mortgagee sale by the Commonwealth Bank of Australia in relation to Lots 51 and 52 at M and Lot 22 at M.  Again, there is a dispute as to the reason for this purported mortgagee sale and whether the same, if it occurs (and it appears it has not yet occurred) is due to the failure to act or the fault in some way of either the husband or the wife.  If there is to be a mortgagee sale and a substantial loss incurred as a result of a mortgagee sale, then that would affect the amount of assets available for the Court to consider in relation to the overall assessment for the purposes of final orders. 

8. I therefore give leave to the husband to reopen his evidence in relation to the proposed mortgagee sale by the Commonwealth Bank of Lots 51 and 52 and Lot 22, M, provided that the same includes affidavit evidence of the husband in relation to his steps taken concerning the mortgagee sale and the evidence of the relevant officer of the Commonwealth bank indicating the steps the Commonwealth Bank consider necessary or available which would have prevented the proposed mortgagee sale and which can now prevent the proposed mortgagee sale. 

9. For that purpose, I give leave to the husband to issue a subpoena to the relevant officer of the Commonwealth Bank to give evidence in relation to the proposed mortgagee sale. 

10. I also give leave to the wife to issue a subpoena for documents and, if necessary, to call the evidence of the appropriate Commonwealth Bank employee concerning the proposed mortgagee sale if the husband does not intend to call the evidence of an officer of the Commonwealth. 

11. In relation to the issue concerning the further evidence the husband seeks to call in relation to the E development, this is a matter that relates to the allegations by the wife that the husband has an undisclosed interest in the developments at E.  The evidence that the husband seeks to call relates to the rental of the property since the close of the evidence. 

12. I am not satisfied that what has happened to the property since the trial is a relevant factor which would sufficiently assist the Court.  I do not grant leave to reopen the evidence in relation to that issue. 

13. The husband also seeks an order restraining the wife from transferring, encumbering, assigning, pledging or any way dealing with her estate or an interest in the property at N.  I understand the main basis for this is that he seeks to restrain the wife from dealing with this property because he has been restrained from dealing with other properties pending the judgment.

14. This is not an appropriate basis for an injunction.  It simply can be described as a “tit for tat” type application.  The husband’s proposals by way of final orders were that the wife retain as her own property the N property (initially being a proposal that she receive it without any mortgage remaining on the property, but subsequently that she receive it subject to the debts secured on the property).  I therefore do not find a basis for the appropriate injunction made out and decline to make the order. 

15. In relation to the question of employment by Ms Tritton, the wife has consented to an order directing her to disclose documents in relation to her employment.  I will give leave to the husband to open the evidence in relation to the wife’s employment following upon the receipt of the discovered documents, provided that he annexes the discovered documents to his affidavit, indicating the basis upon which he seeks to have the wife recalled in relation to any dispute that might then arise in relation to such employment. 

16. In paragraph (7) of his application the husband says, “I ask the Court receive further undated evidence regarding the sale of the property at [S]”.  This apparently relates to capital gains tax assessment carried out by Mr I, being an Annexure “G” to the affidavit the husband filed on 11 May 2010.  That letter says that the capital gain was $175,283 and then proceeds to calculate the capital gains tax payable.  There is no basis in the letter for the calculation of the capital gain, nor the other figures such as cost of Mr D buyout and L Unit Trust rental losses.  I give the husband leave to reopen the evidence in relation to the capital gain tax in relation to the sale of S property, provided that evidence consists of the evidence of Mr I and supporting original documents relating to the basis upon which the capital gain is calculated and the basis upon which the other factors, such as cost of Mr D buyout and L Unit Trust rental losses are calculated, and that Mr I is available for cross‑examination on that material.

17. In relation to the Application in a Case filed by the wife, paragraph 1 of the application has now been complied with.  Paragraph 2 relates to the proceeds of sale of Y property.  The proceeds of sale have been paid into an account which was placed in debit shortly before that payment.  From that arises the question of the husband’s current assets and the whereabouts of the funds he received from the proceeds of sale of Y property.  It also brings into account the issue raised as to whether Y property and the proceeds therefrom are properly to be brought into account in these proceedings, notwithstanding the agreement of the parties as evidenced by the hearing before Justice Strickland some time ago that upon payment of the $62,500 by the husband to the wife, Y property would not be brought into account in the final proceedings.

18. However the whereabouts of the proceeds of sale do not affect the determination of the amount to be brought into account in relation to the final property settlement proceedings.  Therefore, I do not propose to make any order as sought by paragraph 2 of the wife’s application. 

19. Paragraph 3 of the wife’s application is no longer appropriate, as the evidence of the husband as set out in his affidavit of 11 May 2010 indicates that the only asset now available to the Poyzer Investments Pty Limited Superannuation Fund is a debt owing by Poyzer Nominees Pty Limited.  The assets of the Poyzer Superannuation Fund (incorrectly described by the husband as the Poyzer Pty Limited Superannuation Fund in his affidavit) represent,  according to his affidavit, the cash at Bank of SA, $120,227.24;  chequebook at Bank SA, $5.51;  10,000 Silex shares, $53,900;  and the property at G which the husband places a value of $330,000, but the value of which is disputed in the evidence before me.

20. I propose, therefore, to note for the purposes of the evidence of the trial and the conclusion of the final proceedings that the Poyzer Investments Pty Limited Superannuation Fund has, according to the husband, the negative cash of $58.06, and the loan and interest owing to the fund by Poyzer Nominees Pty Limited, being $209,002.89 unpaid interest of $38,873.12 and unpaid interest of $15,330.02.  That the Poyzer Superannuation Fund, being the new fund created by the husband, has the assets being the cash at bank of $120,227;  the chequebook at $5.51;  10,000 Silex shares, $53,900;  and the property at G, valued by the husband at $330,000, but the value being the subject of dispute for determination by the Court in the final hearing.

21. Those funds are already the subject of the injunction made by me at the conclusion, or what was then the conclusion of the trial, on 23 September 2009 which would restrain the husband from transferring, encumbering, assigning, pledging or in any way dealing with his estate and interest in, or the assets of the following entities including Poyzer Superannuation Fund and Poyzer Pty Limited.  That order applies, save and except with the prior written consent of the wife and/or in the ordinary course of business and in relation to living expenses for himself, the wife and the parties children.  The order, therefore, of 23 September 2009 is continued.

22. In relation to the affidavit material to be filed in support of the applications in relation to the leave I have given to reopen the evidence, I would propose, bearing in mind the need to deal with this matter promptly so that my judgment can be delivered and the proceedings concluded, and bearing in mind that the affidavit material is substantially already available to the husband, either for his own affidavits or from the evidence of his supporting witnesses such as Mr I and Mr V, I propose to give the husband 14 days to file that affidavit material and serve it.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  27 May 2010