PRIESTLEY & PRIESTLEY
[2012] FMCAfam 900
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRIESTLEY & PRIESTLEY | [2012] FMCAfam 900 |
| FAMILY LAW – Property – enforcement & interpretation of consent orders. |
| Family Law Act 1975, ss.80, 81, 105, 117 |
| In the Marriage of Davidson (1994) 17 Fam LR 656 Ramsey & Ramsey (1983) FLC ¶91-301 |
| Applicant: | MR PRIESTLEY |
| Respondent: | MS PRIESTLEY |
| File Number: | CAC 1163 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | n/a |
| Date of Last Submission: | 21 June 2012 |
| Delivered at: | Canberra |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented Litigant |
| Solicitors for the Respondent: | Andrew Warren & Associates |
ORDERS
After the deduction of reasonable commission and advertising costs, the proceeds of sale held by [E] less GST ($27,418), be divided 55% to the Wife and 45% to the Husband.
The Wife make an adjustment to the Husband of 45% of the value of the quad bike (sold for $5,000) being the sum of $2,250.
The Wife make an adjustment to the Husband of 45% of the net proceeds of sale of the cattle sold by [C] Pty Ltd ($9,236.19) being the sum of $4,156.29.
The Husband make an adjustment back to the Wife for half of the septic repair costs ($1,292) being the sum of $646.
In the absence of written submissions (limited to 2 pages) within 7 days in relation to costs, each party shall bear their own costs of the Application.
IT IS NOTED that publication of this judgment under the pseudonym Priestley & Priestley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1163 of 2009
| MR PRIESTLEY |
Applicant
And
| MS PRIESTLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for enforcement of final property orders that were made by consent on 27 May 2010 (“the consent orders”). The parties cannot agree on the import and effect of those orders and seek the Court’s determination, whether (I interpolate) by reference to ss.80, 81 or even s.105 of the Family Law Act1975,[1] or otherwise, in relation to how those orders should apply in the light of the facts and circumstances set out in these reasons.
[1] For a general discussion of principle in relation to the sections referred to, see In the Marriage of Davidson (1994) 17 Fam LR 656, and Ramsey & Ramsey (1983) FLC ¶91-301.
Pursuant to an Application in a Case filed by the Husband on 2 February 2012, and a Response from the Wife filed on 13 March 2012, the principal dispute between the parties relates to the division of proceeds from a clearance sale, pursuant to Order 5 of the Consent Orders, which was held on 14 May 2011.
It may assist, at least to provide some perspective if nothing else, to note that the overall property pool the subject of the May 2010 consent orders was somewhat over one million dollars, with liabilities only in the order of $180,000 or thereabouts. The amount the subject of the current dispute is approximately in the order of $25,000 – or thereabouts. That said, there is even dispute about the sum in dispute. However, for the purposes of these reasons, it is sufficient to note the figure of $25,000.
Having regard to the amount in dispute (on any version), one can only lament that significant further resources have been required and expended on such a relatively modest sum. Indeed, it may be that the cost (in dollars and cents - and almost certainly in time) has equalled if not exceeded the amount over which there has been somewhat unbridled contest. Alas, such is often the case in family law matters which feature an intractable dispute, and where commercial reality, a basic pragmatism (and not a few other things besides) take a back-seat – so to speak.
Accepting the necessary limitations of the procedural course adopted, not least in relation to contested issues of fact, in order to have the determination of the matter expedited and limit costs associated with a formal hearing, it was agreed that the matter would be determined by the filing of written submissions together with evidence by affidavit.
The Respondent Wife submits that only part of the proceeds is divisible on a 45/55 per cent split in her favour and that the remainder of the proceeds represent the sale of the Wife’s absolute property. The Husband rejects this and submits that all of the proceeds from the sale are to be divided between the parties on a 45/55 per cent basis in the Wife’s favour.
There are three other related issues to the clearance sale.
Firstly, the Husband says he was “adversely impacted” because he was not present at the sale, having not been informed of it. Secondly, the “ride-on mower” sold at the clearance sale is said by the Husband to be the property of a third party and was not property of the Husband or Wife. Finally, there is an issue about the passing in of the Kawasaki quad bike which was later privately sold by the Wife; however the Husband has acceded to the Wife’s given value of $5000.
The parties also dispute the total value of proceeds from the sale of cattle and horses.
The Husband submits that the Wife has sold two sideboards from the tray of his utility truck. The Wife submits that there is no evidence to support this claim.
The Husband alleges that the Wife has assets and additional income that have not been disclosed by the Wife which should be considered in this matter. Again, the Wife submits that there is no evidence to support this claim.
The Wife says that the Husband owes her various sums of money for the following expenditure by her: reimbursement for 50% of the cost of repairs to the property’s septic system prior to the completion of sale; reimbursement for money paid by the Wife in relation to the mortgage account; and, reimbursement for 50% of an outstanding liability to the ATO.
Issues in dispute
The following list identifies the respective contentions of the parties:
·Whether the Husband was adversely impacted by not having been present at the clearance sale.
·Whether all, or only selective, items sold at the clearance sale form the pool of proceeds to be divided between the parties.
·What value should be inserted into Item 9 of the table attached to the Consent Orders made 27 May 2010 in relation to the proceeds from the sale of cattle and horses.
·Whether the Wife sold the side-trays from the Husband’s utility truck and, if so, how this is to be accounted for.
·Whether the Husband is liable for the Wife’s expenditure to maintain the property.
·Whether the Husband is liable to reimburse the Wife $837.25 in relation to the mortgage.
·Whether the Husband is liable to reimburse the Wife $646 being half of the septic system repair costs.
·Whether the Husband is liable to reimburse the Wife $570.50 for an outstanding ATO liability of $1141.
·The appropriate division of the proceeds still being held in trust by [E].
Orders sought by the parties
The Applicant Husband seeks:
1. That the full proceeds of the clearing sale of Assets in the Non Superannuation pool marked as sale and any other assets not retained by either party be divided forty five per cent to the applicant and fifty five per cent to the respondent.
2. That the respondent pay the costs of maintaining the property in good order in accordance with order 4 of the existing orders.
3. That the respondent produce documents relating to the value of cattle and horses disposed of by her in accordance with item 9 of the Non Superannuation Pool and pay the applicant forty five per cent of the value of the livestock in accordance with the existing orders.
4. That the respondent pay the applicant [sic] legal costs of the applicant of Walter Maddens Jenkins Solicitors.
The Respondent Wife seeks:
1. That from the sum of $28,256.00 held by [company omitted] (“[E]”) on behalf of the parties, the parties shall within 7 days:
(a) authorise [E] to pay its account for advertising and commission in relation to the said clearance sale the sum of $4048.93
(b) direct [E] to pay to the Wife’s solicitors the sum of $9,682.01
(c) direct [E] to pay to the Wife the balance of $14,525.06.
2. That the Husband pay the Wife’s costs of and incidental to this application on an indemnity basis.
3. That the Husband and Wife shall attempt to agree upon the Wife’s costs pursuant to Order 2, and in the event of failure to agree, the Wife shall do all such things necessary to have those costs assessed. Upon agreement as to the costs of the Wife or a Certificate of Assessment of those costs being obtained by the Wife, the Wife’s solicitors shall pay to the Wife the sum agreed or assessed from the funds held by them pursuant to Order 1(b), and pay the balance of funds held by them pursuant to order 1(b) after that payment to the Husband.
The clearance sale
The Husband submits he was not aware of the clearance sale which took place on 14 May 2011. He says that the Wife organised the sale while he was overseas with the parties’ children and that it took place two days after his return. He says that he was readily contactable by the Wife while overseas and that the Wife spoke with the children twice while they were holidaying in New Zealand. The Husband contends that he was not informed by the Wife during what he describes as “an extensive conversation with the Respondent” two days prior to the sale, when the parties spoke in relation to the daughters broken arm.[2] In the Wife’s Submissions in Reply the Wife submits that “there has been no evidence filed” in relation to the Husband’s Submissions that he was not informed of the clearing sale during that conversation.[3]
[2] Husband’s submissions, filed 6 June 2012.
[3] Wife’s submissions in Reply filed 21 June 2012 p.1.
In her Affidavit the Wife says that on 13 April 2011 the Husband and Wife “entered into a Contract for Sale of the property. Completion was due to occur on 25 May 2011. Vacant possession was to be given to the Purchases (sic).”[4]
[4] Wife’s Affidavit, filed 13 March 2012, par 3.
The Wife contends as follows:
a)The Orders required the sale to take place concurrently with the sale of the property and;
b)The Husband had authorised the agent to conduct the sale; and
c)The Husband had entered into a Contract to sell the property which required vacant possession 11 days after the sale took place.
The Wife says that she had a “number of conversations with [E] about the need to organise the clearance sale prior to the completion date…” and that “[E] organised the sale to take place on 14 May 2011.”[5] The Wife says that she instructed the parties’ conveyancing solicitor and the [E] agent to inform the Husband of the sale, that she had limited direct communication with the Husband because he “is abusive towards me when he speaks to me”, that she had “no way of contacting him” while overseas, and that the sale was advertised in the local paper for two weeks leading up to the sale.[6]
[5] Wife’s Affidavit, filed 13 March 2012, par 4.
[6] Wife’s Affidavit, filed 13 March 2012, pars 6-8.
According to the Wife, the Husband was overseas from 23 April 2011, 10 days after signing the Contract of sale, and that the Husband returned from overseas with the children on 11 May 2011, 2 days before the sale.[7] The Wife does not say what date [E] contacted her to inform her of the date for the clearance sale. It should be noted also that for the two weeks the sale was advertised in the local paper, there were only two days on which the Husband could have possibly read of the sale being advertised.
[7] Wife’s Affidavit, filed 13 March 2012, par 7.
The Husband contends that he was adversely affected in not being present at the sale, in particular, because he was “unable to identify what was sold”, “unable to bid for or observe the sale” and “unable to establish the value of the assets sold or assist in the sale or to pass in any asset”.
The Husband raises his specific concerns at paragraphs 19 and 20 of his Affidavit, thus:
19. The Kawasaki quad bike was not indicated on the running sheet for the sale and there was no suggested value or information to say whether the item has been disposed of by the respondent or not.
20. Some items of sale, in particular one chainsaw was sold for two hundred dollars which was far below its true market value of about six hundred dollars. I did not have the opportunity to see which property was actually sold and the running sheets of the sale do not accurately enough describe the items sold so that I can identify the items.
The Wife says that the Husband does not appear to be adversely affected by the sale taking place, save as to the Husband’s complaint that “he had no opportunity to bid for or pass in any item”. The Wife confirms that “[t]he Orders did not provide for him to be able to pass in any item in any event.”[8] It is notable, however, that at paragraph 20 of the Wife’s Affidavit, she used the opportunity to pass in property, specifically, the Kawasaki quad bike.
[8] Wife’s submissions filed 6 June 2012, par 33.
Ultimately, the clearance sale went ahead without the Husband being present and the remaining items from the property were sold. The Husband’s Submissions reflect that he accepts this outcome.
The significance of the Husband’s absence and the reason for his absence flows into the dispute between the parties arising from the Wife’s claim that certain items sold at the clearance sale were her absolute property and that the Husband has no claim to them. On the material before the Court, the Husband is at a distinct disadvantage to the Wife, having not been at the sale to see the items that were sold, whether they were sold at a fair price or whether he agreed with the Wife that some of the items were solely hers. The Husband, like the Court, is reliant on the brief (and sometimes inadequate) descriptions of the clearance sale run sheet to determine what was sold at the clearance sale. A copy of the run sheet is annexed to the Wife’s Affidavit filed 13 March 2012.
Dispute over proceeds from the clearance sale
The total funds from the clearance sale conducted by [E] are $27,418. The Wife in her affidavit filed 13 March 2012 states that the [E] commission and advertising amounts to $3015.98 and $1032.95, leaving a net amount of $23,369.07 in the [E] trust account.[9]
[9] Wife’s Affidavit, filed 13 March 2012, pars 15 - 16.
The Wife claims that only a portion of the items from the sale are non-superannuation assets which are to be divided 44/55 per cent between the Husband and Wife. The remainder of the proceeds from the sale are claimed by the Wife to belong solely to her.
The Husband disagrees with the Wife and argues that all the items sold at the clearance sale form part of the property to be disposed of under Order 5 of the 27 May 2010 Orders and that the entire proceeds of the sale should be divided between the parties pursuant to Order 5.
All items sold at the clearance sale can be identified on the ‘run sheet’ which, as previously noted, can be found annexed to the Wife’s Affidavit.[10]
[10] See Annexure D to that affidavit, pp. 15-38.
There is no dispute over the division of the proceeds for the following property sold at the clearance sale:
a)Tractor;
b)Chainsaw;
c)Stock crate;
d)Slasher;
e)Kit Shed; and
f)Items coloured orange on run sheet .
There is dispute over the division of the following property:
a)Items sold at the clearance sale listed on the run sheets which have been left unhighlighted by the Wife so as to differentiate between items she claims belong to her and not the Husband;[11]
b)Quad bike; and
c)Ride on Mower sold at the sale (page 29 on the ‘run sheet’), said by the Husband to belong to a third party.
[11] See Annexure D to the Wife’s Affidavit, filed 13 March 2012, pp.15-38.
Orders 5 and 7 of the Consent Orders made 27 May 2010 state (emphasis added):
5. That concurrently with the sale of the property provided for above the Husband and Wife do all things necessary to conduct a clearing sale of farm equipment and materials not to be retained by either of them or to be included in the sale of the property and on sale divide the proceeds of sale after selling costs as to 45% to the Husband and 55% to the Wife and any such sale items shall be removed from the non superannuation pool for the purposes of the division of proceeds of sale of the property provided for above.
…
7. That the Court otherwise declares that the parties have divided between themselves in specie all their other property not included in the non superannuation poll (sic) annexed hereto including their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and building society and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other including any entitlement to superannuation.
At paragraph 9 of the Wife’s Affidavit, she says:
Pursuant to Order 5 the clearance sale was conducted on 14 May 2011. At the clearance sale, the farm equipment and materials referred to in Order 5 were listed for sale, as were other items of property belonging to me.
The Wife asserts that “there were items sold at the clearance sale that were not ‘farm equipment and materials’” and that “the Husband has no entitlement to a share of those items”, pursuant to Order 7 of the Consent Orders.[12]
[12] Wife’s submissions, filed 6 June 2012, para.40.
The Husband maintains “that all of the assets were obtained during our marriage” and does not concede “that any of this property (sold at the clearance sale) was divided between us”. The Husband contends that he took only a few items from the property when he left, namely “an old refrigerator, an old lounge, bed and an old television”. He submits that he “left all the farm equipment to be sold” and that “[t]he orders are clear that any property not to be retained by either of the parties shall be sold”.
The Wife states at paragraph 9 of her submissions in Reply that Order 7 provides that:
… “all other property not included in the non superannuation poll (sic)(pool) annexed hereto has been divided between the parties”.
That being the case, if the Wife chose to “not retain” some item (“material??”) that had already been declared her sole property, why should she then have to account to the Husband for a share of the proceeds of it?
Secondly, the use of the word “materials” in order 5 does not properly describe the other items sold by the Wife at the clearance sale.
Clearly, “materials” in Order 5 was a descriptor used to expand the use of the phrase “farm materials.” Hence, the only proceeds of the sale to be divided are the proceeds derived from the sale of “farm equipment and materials”.
In the Wife’s Submissions, filed 6 June 2012, she submits:
42. The only evidence available to Your Honour as to whether items sold were, in fact, “farm equipment and materials” is either where the descriptor applied in the running sheets on its face makes it plain that the item was “farm equipment and materials”, or alternatively, where the Wife has expressly conceded this to be the case by colouring the item in orange.
43. It is manifestly apparent that many of the items sold at the clearance sale cannot possibly be described as “farm equipment and materials”. A perusal of the running sheets shows items such as “kid’s play set”, “towel rack”, “cornice” (Page 17), “tank” (what kind?), “timber”, “pavers” (page 18), on multiple occasions “sundries” (could be anything) “bike” (on two occasions at page 28) “swing set” (page 29) “fish tank” (page 30), “rugs”(on four occasions at page 32) and so on. Lamps, motors, picture frames and a blanket box all have been sold. The Husband cannot possibly have any claim to a share of these items. They could never fall within the ambit of Order 5 as “farm equipment and materials”.
44. Two particularly valuable items appear on page 36 – a horse float and a buggy. The evidence before the Court is that these parties conducted a cattle farm. The horse float was certainly not part of the farming enterprise (in fact it was used to transport the children’s pet pony by the Wife). There is no evidence whatsoever before the Court of the nature of the “buggy”. It is submitted that the Court could not possibly make a finding on the evidence before it that the “buggy” (which could be a number of things, for example, a child’s perambulator, a golf club conveyor, a horse buggy, a sulky) could fall within the description of “farm equipment and materials”.
45. It is submitted that both the horse float and buggy were the Wife’s sole property under Order 7, not being “farm equipment and material”, and the Husband can have no claim to the proceeds”.
It should be kept in mind that this is a relatively small amount of money in the context of the larger pool of assets already divided between the parties and over a year has passed since the clearing sale occurred. A primary objective here is to achieve finality for both parties after what has been a lengthy property settlement (having commenced in October 2009). Having regard to the submissions of both parties, I make the following comments and observations.
The Consent Orders made on 27 May 2010 are to be read in the context of all the material before the Court. It is clear from that material that the parties and their children shared in a rural/farming lifestyle. On the property the parties ran a cattle farm, built a house, as well as a horse stable and various sheds. The property was also used to keep pet horses. These activities are commonly associated with living and working on a farm. In the light of the overall use and maintenance of the property, in my view it would be inappropriate to apply a restrictive interpretation to the meaning of “farm equipment and materials” in Order 5, as argued by the Wife.
Turning to the “run sheet” itself and the context of the activities carried out on the property, many of the items not marked in orange on the run sheet annexed to the Wife’s Affidavit would be considered to be commonplace items used on a farming property, for example: pipe fittings (page 18), winches (page 24), trailer (page 30), barrow (page 32), horse boxes, collars, saddles, horse float, trailer, buggy, gun case, timber, crates, motors and scrap metal.
If the Wife intended that certain items in the clearance sale, which took place pursuant to an Order of the Court, not be included as proceeds to be divided between the parties, then she did so at her own risk that they might be assumed to be items that she considered fell within the meaning of Order 5.
As the Wife states in her own Submissions at paragraph 42, the Court must rely on the description of each item on the run sheet or items conceded by the Wife. Many of the items have only a simple description, such as ‘pipe’, work bench’ and ‘electric cords’, which further limits the Court’s ability to interpret the precise nature of those items. Some of the items are so poorly described, for instance “sundries”, that the Court could never decipher precisely what the item may have been that was sold.
On the material, there was nothing to stop the Wife from organising her own clearance sale in relation to property that she claimed specifically as her own. But she did not do so. There was no separate clearance sale. Of the items sold, the Wife claims that only 52 of the 155 items sold were in fact joint property of the parties. For reasons already noted, because the Wife fully controlled the clearance sale, in my view, this is an unreasonable position to maintain.
As already observed, the property was used to keep horses, a commonplace activity on a farming property, and thus within the broad meaning of “farming equipment and material”. It is most probable that “buggy” referred to that used for a horse or pony. “Horse float” and “buggy” appear consecutively on page 36 of the run sheet. The purchaser of the buggy (purchaser 18) made two other purchases of “horse boxes” (page 33 & 34). At a clearance sale price of $4000, and absent proper evidence one way or the other, it is highly improbable that “buggy” refers to a child’s perambulator or golf club conveyor.
By way of general observation, on the limited evidence available to the Court, in my view it is open to the Court to conclude that all of the items available at the clearance sale were items sold pursuant to Order 5, being farming equipment and material that the parties needed to dispose of before the property itself was sold.
Ride on Lawn Mower
In relation to the ride on lawn mower, the Husband says “[t]he sale included a ride on lawn mower which was not our property and which was the property of Mr G. We had no title to this property and no authority to dispose of this property.”[13]
[13] Husband’s Affidavit filed 2 February 2012, para.21.
The ride on lawn mower sold for $550.[14] Mr G is not a party to the proceedings.
[14] Wife’s Affidavit, filed 13 March 2012, p.29.
Kawasaki Quad Bike
The Husband contends that the Wife retained the proceeds of sale of a Kawasaki quad bike. The Husband says that the receipt for the sale, annexed to the Wife’s Affidavit (filed 13 March 2012, annexure “F” page 40) was written to herself from herself and submits that this receipt “has no value” and that there is no receipt from the business in relation to the sale.
For her part, the Wife contends that the quad bike was “passed in” at the clearance sale and that the “Wife sold it on 15 May 2011 for $1000 more than the highest bid”. The Wife affirms in her Affidavit that the quad bike was sold for $5000 excluding GST.[15]
[15] Wife’s Affidavit, filed 13 March 2012, para.20.
Although the Husband contests the evidence provided by the Wife, he accedes to the value of $5000 and that it be allocated to Item 9 of the Non Superannuation Asset Pool (table annexed to the Consent Orders).[16]
[16] Husband’s Affidavit, filed 3 April 2012, para.5.
In the circumstances, there does not appear to be any dispute that it is the Wife who holds the proceeds of sale for the quad bike.
Sale of Cattle and Horses
The following brief narrative outlines the position of each party in terms of the cattle and horses alleged to have been sold and the proceeds of sale.
The Wife’s evidence is that cattle on the property as at the date of the May 2010 consent orders were sold for net proceeds of $9,236.19 on 31 March 2011. She says that, at the same time, she sold four calves born after the date of the consent orders, for $500 each, and claims those calves were her property alone. Her position is that the $2000 received for the calves should be deducted from the net balance and that after the payment of GST of $657.84, the net balance of the proceeds was $6,578.35.[17]
[17] Wife’s Affidavit filed 13 March 2012, parsa.21 – 22. See also Annexure G to that affidavit being the receipt from [C] Pty Ltd relating to the sale of the cattle and Annexure H containing a letter to the Wife from [C] Pty Ltd advising of the value of the calves born after settlement.
Regarding horses, the Wife says there were no horses on the property apart from one which belonged to the daughter of the parties which died in June 2010.[18]
[18] Wife’s Affidavit, filed 13 March 2012, para.21.
The Husband maintains that the cattle were sold for the $9,236.19 amount and says a cheque for this amount was paid to the Wife on 4 April 2011.[19]
[19] Husband’s Affidavit, filed 3 April 2012, para.1. No evidence of such a cheque to the Wife is before the Court.
The Husband seeks also to include amounts for stock sold prior to the orders of 27 May 2010 including cattle he alleges was sold on 23 March 2010 for $1,211 with a cheque paid to the Wife on 24 March 2010.[20]
[20] Husband’s Affidavit, filed 3 April 2012, para.1. Again, no evidence of such a cheque to the Wife is before the Court.
In his submissions the Husband says that when he left the property there were “a number of cattle and four horses” and that there was an agreement between the parties that the value of the cattle should be established and then sold. He contends further that the “non superannuation register” shows an “unknown” value.
The Husband says that he made enquiries with stock agents in [B] and found out that the Wife had sold cattle through the [B] Saleyards.[21] According to the Husband in his submissions, through his “own inquiries” of stock agents and documents from the Child Support Agency he found that:
…cattle were disposed in April 2010 at sale for $1200, cattle were disposed in April 2011 for $9,236.19. Cattle were disposed in March 2010 for $3861.44 for a total of fourteen thousand two hundred and ninety eight dollars. The Respondent retained all of the money from these sales and no offer was made to the applicant.
[21] Husband’s Affidavit, filed 2 February 2012, para.10.
Annexed to the Husband’s Affidavit of 4 April 2012 is a document entitled “Your asset and debt details” which he affirms was provided by the Wife to the Child Support Agency, detailing (at paragraph 29 of the annexure) the sale of 2 bulls in April 2010 for $1200 and “PONIES/HORSE” in March 2010 for $2650.[22]
[22] See also para.18 of the Husband’s Affidavit, filed 2 February 2012.
In her Submissions in Reply, the Wife says that there is no evidence of the sale of “the horses and some cattle, (two bulls)” and submits there is no document attached to “either of the Affidavits sworn by Mr Priestley from the Wife to the Child Support Agency”. The Wife refers to a letter from the Wife’s solicitors to the Husband’s solicitors dated 5 December 2011.[23] In relation to cattle, the letter states that “all of the cattle were sold by our client on 31 March 2011” and attached a copy of the account which indicates that the net proceeds were $9,236.19, less $2000 for the sale of the four calves born after the date of consent orders (and on this basis said to be the property of the Wife), less the GST, leaving a balance of $6578.35.
[23] Annexure T to Wife’s Affidavit, filed 13 March 2012.
In relation to the sale of the calves, the Husband says in his submissions that the Wife produced an “unusual letter from a stock agent” (presumably referring to letter being Annexure H of the Wife’s Affidavit of 13 March 2012) which the Husband believes “indicates some pressuring of the stock agent”. The Wife contends that the Husband’s submission is irrelevant and not supported by evidence.[24]
[24] Wife’s submissions in Reply filed 21 June 2012, para.8.
It appears, in any event, that the Wife holds the proceeds of sale of any cattle or horses sold.
The Husband seeks “the payment of interest at the official interest rate plus six percent in relation to the sale of the cattle, calculated to the sale date of the 31 March 2011.”[25] This is not a formal order sought in the Husband’s Application.
[25] Husband’s Affidavit, filed 3 April 2012, para.7.
Missing sideboards from Husband’s utility truck
The Husband contends that sideboards from the tray of his utility truck have been sold without his knowledge and he estimates it will cost “a couple of thousand dollars” to replace. In the Wife’s Submissions in Reply she says that there is no evidence to support the Husband’s submission on the alleged sale of the sideboards.
Alleged receipt of undisclosed income & assets by Wife
In the Husband’s Affidavit of 4 April 2012, there is a Child Support Agency “Response” document which he says has been completed by the Wife. On the basis of the information contained in it, the Husband says that the Wife “is now in a position where she has assets of six hundred thousand dollars and an income from the United Kingdom of some three thousand dollars per month, in addition to her normal working income and government support and child support agency payments made by me to this date”. The Husband then contends “that there has somehow now been an accumulation of significant money and assets, undisputed, either not disclosed or not foreseen by the respondent and that those circumstances could be considered in this matter”.
In the Wife’s Submissions in Reply, she submits that this claim, among others, is “irrelevant and or [is] not supported by evidence”.
ATO Liability
The Wife asserts that the Husband owes the Wife a sum of $570.50 for the payment of a tax liability.
The Wife says in her Affidavit, filed 13 March 2012:
29. The Husband and I conducted a partnership that had an outstanding ATO liability of $1,141.00 for the financial year 2008/2009. I paid the entire amount of $1141.00 of 28 April 2011 to finalise the debt. I seek to be reimbursed by the Husband 50% of that amount, ie $570.50.
30. Annexed hereto and marked with the letter “N” and forming page 50 of this my Affidavit is a copy of our ATO itemised account.
The Husband contends in his submission that:
“these matters have been fully explored prior to the making of the orders and were known to the respondent prior to the making of the orders. Further to this, the respondent withdrew an amount of money from the joint account of the farm business in 2009 for which no tax had been paid. The matter was not raised prior to or at the time of the making of the orders. I have not signed a partnership tax return relating to this money…I am up to date with the taxation department and all of my taxation has been paid to this day”.
Mortgage Repayments
The Husband says that he continued paying half of the mortgage in relation to the property.
The Wife says that the Husband removed $1400 from the mortgage account.[26] The withdrawal on 7 April 2010, marked with an asterix, appears to refer to “truck repairs”. The Wife claims that she was told by the bank that she would not be eligible for a car loan “unless the mortgage was brought into order by the deposit of at least $837.25” which the Wife subsequently paid. The Wife seeks that the amount payable to the Husband be reduced by $837.25.
[26] See Annexure L, p.64 of the Wife’s Affidavit, filed 13 March 2012.
Preparation for Sale / Maintenance of Property:
The Wife says that pursuant to special condition 45 of the Contract of Sale, the Husband and Wife were required to carry out certain repairs conducted to the septic system on the property prior to completion.[27] The total cost for the work is said by the Wife to be $1,292.00.
[27] See Wife’s Affidavit, filed 13 March 2012, Annexure J, p.43 – Special Condition.
The first invoice (annexure K) for $90 does not appear to have to do with repair work of the septic tank, but only the repair of toilets and a check on the septic system.
The Husband does not dispute the cost of the septic work, but does argue that the fencing work formed part of the Wife’s obligation under Order 4 to maintain the property.
The Husband contends that the Wife was responsible for the maintenance of the property, according to Order 4 of the Consent Orders “including fencing and all items”. In relation to the Wife having work carried out on the fencing and septic trench, the Husband submits that the “fencing was the responsibility of the respondent, even so, the amount of half of these works is not a large amount of money, and should be taken from the proceeds of the clearing sale or sale of cattle”.
Conclusion
In my view, it is unreasonable for the Wife to contend that some of the items sold at the clearing sale did not fall within the definition of “farm equipment and materials”. The clearing sale was organised and controlled by the Wife with no input from the Husband, except that he signed the authority to [E]. It was the Wife who chose what items to sell at the sale. The Wife cannot now, quite some time after the event, seek to differentiate between what was “farm equipment and materials” and what was not. If the Wife decided to clear the items at the Court ordered clearing sale, then it is to be concluded that the items were thought by her to be “farm equipment and materials”. Otherwise, the Wife should have held a separate clearing sale. The definition of the word “materials” is wide enough to include all of the items sold at the sale. The Husband was not given the opportunity to retain any items prior to the sale as the Wife was and he was disadvantaged because of this.
Accordingly, the proceeds of sale held by [E] less GST ($27,418), after deduction of their reasonable commission and advertising costs, should be divided 55% to the Wife and 45% to the Husband.
From her share of 55%, the Wife should make an adjustment to the Husband of 45% of the value of the quad bike (sold for $5000) being the sum of $2250.
The Wife should also make an adjustment to the Husband of 45% of the net proceeds of sale of the cattle sold by [C] Pty Ltd. The Wife says at paragraph 22 of her affidavit filed 13 March 2012, that “I received net proceeds of $9236.19”. Therefore, 45% of $9236.19 is a figure of $4,156.29 and this should be adjusted back to the Husband from the Wife. It is irrelevant that the calves were born after the orders were made and I do not deduct them from this calculation.
I accept the Wife’s submissions that the Husband should adjust back to her half of the septic repair costs of $1292 that is $646, as referred to in paragraph 23 of her affidavit filed 13 March 2012.
Having regard to other comments in these reasons, as well as, in my view, the clear import and effect of Order 4 of the May 2010 consent orders, I accept the Husband’s submission that the fencing work formed part of the Wife’s obligation to maintain the property.
In relation to preparing the property for sale and maintenance of the property, and specifically fencing work undertaken, I accept the submission of the Husband pursuant to the obligations imposed by Order 4 and formally agreed between the parties.
There should be no adjustments for the alleged mortgage account withdrawal of the Husband as there is no proof that he failed to pay his half of the mortgage after the 27 May 2010 orders were made. The allegation by the Wife is that the Husband removed $1400 from the mortgage account prior to the orders being made so presumably this would have been taken into account on 27 May 2010.
Similarly, there should be no adjustment for cattle or horses allegedly sold by the Wife prior to 27 May 2010 as this is alleged to have occurred prior to the final orders.
There is insufficient evidence regarding the side-trays allegedly sold from the truck to make any relevant findings.
No order can be made about the sale of the ride on mower as the person the Husband alleges it belonged to is not a party to these proceedings.
Finally, there should be no adjustment for an amount paid by the Wife to the Australian Tax Office on 28 April 2012, as this occurred after the orders were made and, for whatever reason, this eventuality was not dealt with in the orders.
It will be recalled that in the Wife’s Response, an order for indemnity costs was sought against the Husband. And in the Wife’s (principal) submissions, her learned solicitor indicated the wish to be heard further in relation to costs.
In such circumstances, I should provide some opportunity to make submissions in relation to such things. I will allow submissions in relation to costs within seven days, but note that, if I were to make orders in relation to costs, as currently apprised of the matter and all of its circumstances, and having regard to (a) the terms of s.117 of the Act, (b) the way the matter was conducted (i.e. ‘on the papers’ and by written submissions), and (c) the conclusions reached, in my view, the most appropriate order would be that each party should bear their own costs in relation to the current application. Absent submissions within seven days of the date of these orders, such an order will be made in Chambers.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 6 September 2012
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