Rabino & Rainsford (No 3)
[2021] FamCA 616
•23 August 2021
FAMILY COURT OF AUSTRALIA
Rabino & Rainsford (No 3) [2021] FamCA 616
File number(s): BRC 4468 of 2019 Judgment of: BAUMANN J Date of judgment: 23 August 2021 Catchwords: FAMILY LAW – PROPERTY – Form of final orders made consistent with Reasons for Judgment earlier delivered Legislation: Family Law Act 1975 (Cth) Cases cited: Noetel & Quealey (2005) FLC 93-230
Rabino & Rainsford (No. 2) [2021] FamCA 551
Trask & Westlake (2015) FLC 93-662
Number of paragraphs: 27 Date of hearing: 18 August 2021 Place: Brisbane Solicitor for the Applicant: Hirst & Co Solicitor for the Respondent: Self-represented ORDERS
BRC 4468 of 2019 BETWEEN: MS RABINO
Applicant
AND: MR RAINSFORD
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS:
Definitions
1.That in these orders:
(a)“the Suburb S property” means the real property situated at R Street, Suburb S in the State of Queensland, more particularly described as Lot … on Registered Plan …, title reference number …;
(b)“the Fund” means the Rainsford Super Fund;
(c)“The Rainsford Group” means the following legal entities:
(i)Q Pty Ltd;
(ii)U Pty Ltd ATF the Rainsford Super Fund;
(iii)T Pty Ltd; and
(iv)AA Pty Ltd ATF the AA Trust.
(d)“the Westpac loans” means the Westpac Investment Loan account number …09 and the Westpac Home Loan account number …22.
Transfer of real property
2.That the parties shall, on or before forty two (42) days from the date of these Orders, do all things and sign all documents necessary to transfer to the wife the husband’s right, title, and interest in the Suburb S property and that the wife be responsible for the preparation of all documents referable to the transfer at her sole cost.
3.That contemporaneously with Order 2, the wife shall do all things and sign all documents necessary to cause the Westpac loans to be refinanced into her sole name and until that refinance occurs, the wife shall be responsible for mortgage repayments and other outgoings associated with the Suburb S property.
4.That the husband do all things and sign all documents necessary to facilitate the refinance of the Westpac loans pursuant to these orders within forty eight (48) hours of any request by the Westpac Bank or the wife in writing, including but not limited to the signing of investment withdrawal forms.
5.That any fee levied or charged by the Westpac Bank associated with the release of the husband from the mortgage (including any applicable mortgage exit fee) be paid by the wife.
6.That in the event that the wife is unable to refinance the Westpac loans pursuant to these Orders, that the Suburb S property be sold as follows:
(a)That the property be listed for sale by private treaty with such real estate agent as is nominated by the wife, with the wife to notify the husband of her nominated real estate agent (“the agent”) within seven (7) days of her non-compliance with Orders 2 and 3;
(b)That the husband do all things and sign all documents necessary to appoint the agent to sell the Suburb S property within forty eight (48) hours of any written request to do so;
(c)That the list price of the property shall be such amount as is nominated by the wife, with the wife to notify the husband of the list price and keep him informed as to any alteration to the list price;
(d)That the wife keep the husband informed of any written offers to purchase the property received;
(e)That the parties are to accept any offer to purchase the property that is at least 95% of the list price, with the husband to execute any contract of sale within forty eight (48) hours of any request by the wife to do so, with the wife to ensure that any contract of sale is prepared such that the husband can execute it electronically;
(f)That the proceeds of sale of the Suburb S property be applied as follows:
(i)To meet all costs of sale including agents’ commission, marketing fees, adjustments and legal costs;
(ii)To fully repay and discharge the Westpac loans;
(iii)The sum of $392,002 to the wife; and
(iv)The balance, if any, to be divided as to 56.5% to the wife and 43.5% to the husband.
7.That the wife shall retain and/or receive as her absolute property all her right, title, and interest to and in, and the husband shall forthwith relinquish and/or transfer to the wife all his right, title, and interest, if any, and if necessary, the husband shall sign all necessary documents and do all necessary act to transfer to the wife at the wife’s sole cost (unless otherwise provided for by these Orders) the following:
(a)The Suburb S property or the net proceeds of sale of that property as the case may be;
(b)Her share of the severance payment received by the husband from H Ltd pursuant to these Orders;
(c)Home contents and personal items in her possession;
(d)The Motor Vehicle 1 (2010) (registration number …);
(e)Bank accounts in her sole name, including the ANZ account ending #...09;
(f)The ANZ Overdraft account ending #...33;
(g)The Westpac Cash Investment account ending #...20;
(h)Her GG Super Fund superannuation interest;
(i)Her EE Super Fund superannuation interest; and
(j)The superannuation interests which she is to receive pursuant to these Orders.
8.That the wife be solely responsible for and indemnify the husband against:
(a)the loan from Ms M; and
(b)the loan from Mr K.
Husband to retain
9.That the husband shall retain and/or receive as his absolute property all his right, title, and interest to and in, and the wife shall forthwith relinquish and/or transfer to the husband all her right, title, and interest, if any, and if necessary, the wife shall sign all necessary documents and do all necessary acts to transfer to the husband at the husband's sole cost (unless otherwise provided for by these Orders) the following:
(a)The Motor Vehicle 1 (2008) motor vehicle;
(b)Bank accounts in his sole name, including:
(i)The ANZ Equity Manager account ending #...35; and
(ii)The KK Bank account ending #...01.
(c)His interest in the H Company Share Scheme;
(d)His share of the severance payment received from H Company pursuant to these Orders;
(e)The proceeds of sale of his trail bike and second trail bike;
(f)The furniture and contents in his possession;
(g)His interest in the Fund; and
(h)His interest in the Rainsford Group subject to these Orders.
10.That the husband be solely responsible for and indemnify the wife against:
(a)the Westpac credit card ending #...38;
(b)the Westpac credit card ending #...93;
(c)the Westpac Classic account ending #...48 including the associated overdraft facility;
(d)the LL Bank Classic credit card ending #...82;
(e)the ANZ Visa credit card ending #...94; and
(f)the ANZ Visa credit card ending #...50.
Joint accounts
11.That the parties do all things and sign all documents within fourteen (14) days of these Orders necessary to close the following joint accounts, with the wife to receive the balance (if any) of these accounts:
(a)The ANZ Cheque account ending #...33;
(b)The Westpac Bonus Saver account ending #...27 and
(c)The Westpac Offset account ending #...51.
Superannuation Split
12.That Orders 12 to 17 (inclusive) of these Orders are binding on the trustee of BB Super Trust, employer plan H Company Super Fund (“BB Super Trust”).
13.That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the base amount of $42,700 from the Husband's interest in the BB Super Trust member number … is allocated to the Wife as at the operative time.
14.That in accordance with section 90XT(1) (a) of the Act:
(a)the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $42,700 of the interest of the husband in the BB Super Trust as at the operative time, whenever a splittable payment becomes payable from the superannuation interests held by the Husband in BB Super Trust; and
(b)the entitlement of the husband in the interest in BB Super Trust is correspondingly reduced by the force of these Orders.
15.That the trustee of BB Super Trust shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Act, the entitlement awarded to the wife in Orders 13 and 14 of these Orders; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in BB Super Trust.
16.That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the husband and the wife shall do all things and sign all documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.
17.That the operative time is four (4) business days after the Order is served on the Trustee of BB Super Trust.
18.That the Court notes:
(a)the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)any payment from the husband’s superannuation interest in BB Super Trust made after the trustee has rolled over or transferred the transferable benefits pursuant to these Orders to a fund of the Wife's choosing are not splitable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).
Severance payment
19.That the husband do all things and sign all documents necessary to cause the severance payment which he is entitled to receive from H Limited in the sum of $581,516.72 to be paid as follows:
(a)The sum of $261,682.52, being the amount which represents 45% of the total severance payment, to be paid to the to the trust account of Hirst & Co Family Lawyers (BSB …, account number …89);
(b)The sum of $22,307.27 to be paid to the trust account of Hirst & Co Family Lawyers (BSB …, account number …89) on account of the husband’s non-payment of outgoings for the Suburb S property;
(c)The balance to be paid to the husband subject to Order 29 of these Orders.
Legal entities
20.That within sixty (60) days of the date of these Orders, the wife do all things and sign all documents necessary to:
(a)transfer to the husband all shares held by her in any legal entity in the Rainsford Group;
(b)resign from any position held by her in any legal entity in the Rainsford Group;
(c)relinquish any power, right or entitlement conferred upon her and renounce any entitlement as a beneficiary of any trust within the Rainsford Group; and
(d)assign any loan balance, including any unpaid trust entitlement, owed to by any of the legal entities in the Rainsford Group to the husband or at his direction provided that the husband be responsible for the preparation of any necessary documents to give effect to Orders 20(a) to (d) above at his cost.
21.That subject to the indemnity provided in Order 22 below, the wife sign and return any documents required (if any) to ensure that the E & D Super Fund is a complying superannuation fund as at 30 June 2020, within seven (7) days of receipt of the said documents, provided that the husband be responsible for the preparation of those documents at his sole cost.
Indemnities
22.That the husband be solely responsible for and indemnify the wife and keep her indemnified against any debts, claims or liabilities including but not limited to any taxation liability or penalties for noncompliance, whatsoever relating to or arising from her involvement in the Rainsford Super Fund including as a former director of U Pty Ltd and hold her harmless in respect of any such claim, debt, or liability.
23.That except as otherwise dealt with by this these orders:
(a)each party will be solely entitled to the exclusion of the other to all property and/or financial resources in the possession of such party as at the date of this Order, including but not limited to any jewellery, furniture, furnishings, appliances, shares, motor vehicles, debtors, choses in action and any other property and/or financial resources, whether realty or personally, whosesoever situate and/or of whatsoever kind presently in the possession of or registered in the name of that party;
(b)monies standing to the credit of the parties in any bank account standing in their sole name as at the date of this Order will be the property of the party in whose name such bank account is held;
(c)each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stands will be deemed to be the sole owner and beneficiary of such policy to the exclusion of the other;
(d)each party will be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order;
(e)the parties will be and remain solely responsible for each and every debt/liability standing in their separate names respectively as at the date of this Order and any debt/liability which may arise as a consequence of this Order, including but not limited to credit card liabilities and debts owing to the Australian Taxation Office, and indemnify the other party and hold them harmless in relation to any such debt/liability; and
(f)each party will be solely liable for and indemnify the other against any taxation liability arising from the transfer to them of any property pursuant to these Orders.
Tax
24.That any duty levied pursuant to the Duties Act 2001 (Qld) (or equivalent legislation of other States and Territories of the Commonwealth of Australia), payable on transactions arising from these Orders or any documents executed pursuant to these Orders be paid by the transferee spouse or the spouse receiving the benefit of same unless otherwise provided for in these Orders.
25.That the parties comply with all requisitions issued by the Office of State Revenue in relation to any document executed or transaction entered into pursuant to, or to put into effect, by these Orders. In default of either of the parties complying with any requisitions so issued within fourteen (14) days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules 2004 (Cth).
Procedural
26.That in the event that any party to these Orders refuses or neglects to comply with any or all of the provisions of these Orders, within fourteen (14) days of a written request to do so, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to 106A of the Family Law Act 1975, to execute all deeds and documents in the name of the Respondent and/or the Applicant and to do all acts and things necessary to give validity and operation to these Orders and for the purposes of these Orders, an affidavit by either party or their respective solicitors is deemed to be sufficient evidence of non-compliance and the non-compliant party shall pay the other party’s costs of and incidental to any application under this provision in accordance with Schedule 1 of the Family Law Rules 2004 (Cth), as agreed or assessed.
Costs
27.That pending the hearing and determination of the wife’s application for costs that the husband restrained by himself or by his servants or agents from accessing, being paid or transferring the sum of $170,000 of his entitlement to severance pay from H Ltd other than to facilitate the payment of the sum of $170,000 to the trust account of Hirst & Co Family Lawyers (BSB …, account number …89), such sum to be held pending the written agreement of the parties or further order.
Costs directions
28.That the wife shall file and serve within fourteen (14) days any written submissions as to costs.
29.That the husband shall file and serve within twenty eight (28) days any written submissions in response as to costs.
30.That the wife shall file and serve within forty two (42) days any written submissions strictly in reply.
31.That unless otherwise ordered, the dispute as to costs shall be determined in chambers on the papers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rabino & Rainsford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 29 July 2021, Reasons were delivered in respect of the property proceedings between the parties (see Rabino & Rainsford (No. 2) [2021] FamCA 551) (“my Reasons for Judgment”), and as set out at paragraphs 80 to 86, the parties were invited to discuss the term of the orders that are consistent with my Reasons for Judgment, after the solicitors for the wife provided to the husband’s solicitors a draft minute of order. That was done.
On 18 August 2021, I was presented with a form of order that the parties agreed reflected the intention of the Court as expressed in the Reasons earlier published, save for two issues.
I heard oral submissions from Mr Hirst, the solicitor for the wife who was present in Court, and also from the husband, who no longer has legal representation. The husband appeared by telephone from the United Kingdom where he now resides.
Before dealing with the two discrete issues raised, I record that it is agreed between the parties that the change of employment for the husband (discussed at paragraph 81 of my Reasons for Judgment) has occurred and the redundancy entitlement has crystallised into a payment now due to the husband of $581,516.72.
As intended, a distribution of this payment in the proportions of 45% to the wife and 55% to the husband computes to payments of:
(a)Wife - $261,682.52; and
(b)Husband - $319,834.20.
The parties informed the Court that, by agreement, the husband would pay from his entitlement a sum of $22,307.27 “on account of the husband’s non-payment of outgoings for the Suburb S property”, which the husband had an obligation to pay under earlier Orders.
This would mean that the balance payable to the husband from the redundancy would amount to $297,526.93
However, as a result of the Application in a Case filed by the wife on 16 August 2021, the wife seeks an order in the terms set out as follows:
1.That pending the hearing and determination of the Wife’s application for costs that the Husband be restrained by himself or by his servants or agents from accessing, being paid or transferring the sum of $230,000 of his entitlement to severance pay from H Ltd other than to facilitate the payment of the sum of $230,000 to the trust account of Hirst & Co Family Lawyers (BSB … Account number …89), such sum to be held pending the written agreement of the parties or further order.
The wife, in her supporting affidavit sworn 16 August 2021, deposes to her application for costs incorporated in the Application in a Case, as follows:
2.That the Husband pay the Wife’s costs of and incidental to these proceedings from 8 February 2019 to date on an indemnity basis fixed in the sum of $210,000 with such payment to be made from the Husband’s share of his H Limited severance payment.
3.That in the alternative to order 2 above, that the Husband pay the Wife’s costs incidental to these proceedings from 8 February 2019 to date on an indemnity basis as agreed or in default of any agreement within 14 days of these orders, as certified under the Family Law Rules with the assessed amount to be paid from the Husband's share of his H Limited severance payment.
4.That in the alternative to order 3, that the Husband pay the Wife’s costs of and incidental to these proceedings from 8 February 2019 to date on a party/party basis fixed in the sum of $160,000, with such payment to be made from the Husband’s share of his H Limited severance payment.
5.That in the alternative to order 3, that the Husband pay the Wife’s costs of and incidental to these proceedings from 8 February 2019 to date on a party/party basis as agreed within 14 days of these orders, or in default of agreement, as certified under the Family Law Rules with the assessed amount to be paid from the Husband's share of his H Limited severance payment.
In short, the wife says that her claim for costs should be fixed either:
(a)on a party/party basis fixed in the sum of $160,000; or
(b)on an indemnity basis fixed in the sum of $230,000; or
(c)if not fixed, then unless agreed, as assessed.
The wife refers to her offer settlement of 8 February 2019 and other offers made on 8 May 2019 and 22 November 2019 to demonstrate some basis for asserting her claim for costs, at least on a party and party basis, has some prospects notwithstanding s 117(1) of the Family Law Act 1975 (Cth) which provides for the general rule that each party should bear their own costs.
Furthermore, the wife points to Orders made to reserve costs of interlocutory events to the trial judge and a specific Order made on 5 March 2020, where I made an order that the husband pay the wife’s costs of the application heard that day “with the quantum and timeframe to be reserved to trial”.
I accept that the orders I will make would result in the husband having little if any assets in this jurisdiction to which the wife could “attach” any order for costs. I am not able to assess at this time, or decide if the circumstances, after consideration of the factors set out in s 117(2A), justify an order for costs and what order would be made that is just (including whether an order should be made on an indemnity basis). In this circumstance, the wife says she seeks a sum of $230,000 be held pending determination of the costs issue.
The husband was prepared for the Court to make a decision on the new Application without time to file a Response but says he has creditors and loans to pay and should be entitled to his full share of the redundancy payment now.
I cannot say that the wife’s claim for costs is doomed to fail, although she would be aware of the principles set out in respect of the exceptional circumstances generally required to be demonstrated, to persuade a Court in this jurisdiction to order indemnity costs.
In the exercise of my discretion, I propose to order that the sum of $170,000 be paid by H Company to Hirst & Co from the husband’s entitlement, to provide some “security” for any costs orders that may be made. The balance of $127,526.93 will be paid to the husband.
I will make directions for the filing of written submissions as to costs, with such application to be determined on the papers in chambers unless otherwise ordered.
The other issue, raised by the husband, arises in these circumstances, namely:
(a)if the wife, with the benefit of the share of the redundancy payment, is able to refinance the current liabilities secured over the family home at Suburb S, then the husband agrees that the wife should keep the home. The proposed orders 2 to 5 achieve that intent. She has 42 days from the date of these orders to refinance;
(b)proposed order 6 provides, sensibly, for the process to be undertaken for sale of the home in the event that the wife is unable to refinance the Westpac loans, and in that event the wife, at proposed order 6(f)(ii), seeks she be entitled to the nett proceeds “without claim from the husband”; and
(c)the husband says, if the house is sold and the nett proceeds are greater than the anticipated $392,002 (see paragraph 76 relying on the pool of assets described in Appendix One of my Reasons for Judgment) then he should be entitled to share to the extent of 43.5% in the increase.
In submissions, Mr Hirst referred to paragraph 80(b) where I said:
if the wife is unable to refinance, then the home will need to be sold, with the wife entitled to the balance of the nett proceeds of sale
The value attributed to the home, for the purpose of the pool of assets, was in accordance with a single expert opinion (adopted by the parties at the trial on 15 May 2020) of $1,425,000. The date of the valuation was 10 July 2019.
There is no probative evidence that the market value of the home has increased at all since 10 July 2019. However, the husband, not an unintelligent man, says all media reports he sees suggest a significant increase in property values has occurred in South East Queensland. That, of course, does not mean this particular home has increased in value.
However, notwithstanding the intention expressed and set out in paragraph 80(b) of my Reasons for Judgment, ultimately it was the Court’s intention also to take further submissions as to the form of order. To the parties’ credit they have reached many sensible agreements as to the form.
Having heard the husband’s submissions, I am satisfied that justice and equity to both parties is achieved IF the home is to be sold, with the husband being entitled to share in any increase. I accept that without having any evidence that the home is more valuable, if it is and the wife refinances successfully, then she will enjoy the total increase. That seems reasonable where she takes on that responsibility of a significant debt.
The home has been owned by the parties since January 2008, and the asset was preserved by the husband’s contribution to the mortgage and other expenses. The wife additionally has properly secured the husband’s agreement to reimburse her for the additional costs of $22,307.27 incurred by her.
The orders that allow such distribution between the parties if the home is to be sold, is consistent with authority (see for example Trask & Westlake (2015) FLC 93-662 at [34] to [37] and Noetel & Quealey (2005) FLC 93-230).
Although I accept it could have been expressed better, it was not my intention that one party obtain a windfall, if the home is sold. Clearly the wife’s case has always been she wishes to retain the home. However, in the exercise of my discretion, the husband and wife should share in any nett increase in the balance achieved by a sale.
The Orders at the commencement of these Reasons are just and equitable.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 August 2021