Selwood and Selwood and Ors

[2016] FamCA 403

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD AND ORS [2016] FamCA 403

FAMILY LAW – PRACTICE & PROCEDURE – joinder – where the Court finds that it is appropriate for the intervener to be joined.

FAMILY LAW – PROPERTY SETTLEMENT – distribution of funds – where the wife seeks orders in relation to the distribution of funds received from the sale of a property – where the order is opposed by the husband and the intervener – where the matter is adjourned for further consideration of the amount payable to the parties.

APPLICANT: Ms Selwood

FIRST RESPONDENT: Mr Selwood

SECOND RESPONDENT:

THIRD RESPONDENT:

Ms K Selwood and

Mr H Selwood

MM Nominees
T/A F Pty Ltd

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 12 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Norrington

SOLICITOR FOR THE FIRST RESPONDENT: DS Family Law

SOLICITOR FOR THE SECOND RESPONDENT: Ms Giacomo

COUNSEL FOR THE SECOND RESPONDENT:

SOLICITOR FOR THE THIRD RESPONDENT:

COUNSEL FOR THE THIRD RESPONDENT:

Ward Keller Lawyers

Ms Giacomo

Ward Keller Lawyers

Orders

UPON NOTING judgment is reserved

BY CONSENT IT IS ORDERED THAT

1. By 5.00 pm today the husband will deliver up to the wife’s solicitors all keys, remotes and other controls necessary for the entrance into and the security of the property at O Street, Suburb I in the Northern Territory UPON NOTING the husband has vacated the premises and the wife has vacant possession.

IT IS FURTHER ORDERED THAT

1. Leave is given to the interveners to participate in this hearing and for the matters to be determined.

2. The husband pay within fourteen [14] days of receipt of any account and indemnify the wife in relation to any account being the payments due pursuant to:

   (a)the sum of TWO THOUSAND FIVE HUNDRED AND FIFTY FIVE DOLLARS [$2,555.00] be paid to Power and Water on account of the husband’s Power and Water tax invoice to 21 January 2016;

   (b)any amount due for Power and Water tax invoice relating to the husband’s power incurred for the period 22 January 2016 to the date of vacant possession;

   (c)any amount due for the final Power and Water tax invoice relating to the husband’s water and sewage incurred to the date of vacant possession;

   (d)the sum of TWO HUNDRED AND TWENTY EIGHT DOLLARS AND THIRTY-EIGHT CENTS [$228.38] be paid to the Darwin City Council on account of outstanding rates and pro-rata payment of rates during the husband’s occupation of O Street, Suburb I.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood and Ors 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: DNC 359 of 2010          

Ms Selwood

Applicant

And

Mr Selwood

Respondent

Ms K Selwood and Mr H Selwood
2nd Respondent

MM Nominees T/A F Pty Ltd
3^rd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me the Application in a Case filed by the wife, and the Responses to the Applications in a Case filed by the husband and the husband’s parents and company (two separate Responses).  The Response to the Application in a Case filed by the husband seeks in paragraph 2 that his parents and MM Nominees Proprietary Limited trading as F Proprietary Limited be joined as parties to the proceedings.  That is the interim matter with which I am dealing on these further interim applications.

2. The joinder of the other parties is opposed by the wife on the basis that there is insufficient information before the Court setting out the basis upon which they should be joined. 

3. The material that I now have before me needs to be read and understood in the context of the long history of this matter which resulted in final orders for a property settlement being made by me on 18 July 2014.  But prior to that on 13 July 2012 I made orders by consent that provided for the husband and wife to pay the interveners (as they were then) the sum of $375,000 in reverse proportions found on resolution of the proceedings.

4. That order provided for the monies to be paid to the interveners within seven days of the wife receiving her entitlement proceeds pursuant to the judgment or resolution. 

5. As is clear, there has not been any resolution.  Judgment was delivered on 18 July 2014.  There were subsequent stay orders and appeals, and costs orders made.  The matter now comes before me in relation to the Application in a Case brought by the wife seeking certain orders.

6. The affidavit of the husband, which he has filed in support of the Response to an Application in a Case (being the affidavit dated 10 May but its tardiness deemed it to be filed on 11 May 2016) for this hearing before me today, on 12 May, refers to paragraph 21: 

   I am of the view that my parents should be paid prior to [Ms Selwood’s] costs orders being satisfied.

7. His opinion, and his view, is not a matter which this Court would take into account in any event.  He then says:

   My parent’s (sic) entitlement was part of the property settlement.

8. It was not part of the property settlement order.  It was part of the consent order made which removed them from the property settlement proceedings.  He then says:

   Unless I receive my payout in accordance with order 23(d)(iv) of the orders of 18 July 2014, there will be insufficient money to provide for distribution to my parents.

9. That is referring to his calculation of the cash that would be available.  That does not indicate that there would not be other means of him obtaining funds.  It then says:

   Any order other than this would impinge on my parent’s (sic) entitlement as ordered.

10. That is not to be accepted as the parents and the other intervener have an order of this Court which is not being sought to be discharged.  He then says:

    I therefore seek that they be joined to these proceedings.

11. That is not a satisfactory basis upon which the interveners should be joined.  However, I now have a Response to an Application in a Case, filed by the interveners on their behalf by their solicitors, seeking that certain orders be made, including that to facilitate order 3:

    The husband and wife do all acts and things, and sign all documents necessary to pay to the second and third respondents the sum of $375,000 from the joint funds held in Withnalls’ trust account for and on behalf of the husband and the wife.

12. That needs to be seen in the context of the Application in a Case being filed by the wife which seeks orders for payment of sums in relation to costs to be paid out of certain funds and which deals with matters which are not specifically dealt with in the final orders made on 18 July 2014.

13. I therefore accept that notwithstanding the shortcomings in the affidavit material and the applications currently before me, that it is appropriate for the interveners to be joined as parties to these proceedings so far as they relate to the dispersal of available funds, and from which funds the costs order should be paid.  I therefore give leave to the interveners to participate in this hearing and have the matters determined.  

14. I make an order by consent, that by 5.00 pm today the husband deliver up to the wife’s solicitors all keys, remotes and other controls necessary for the entrance into and security of the property at O Street, Suburb I (“the O Street property”).  I will simply have it noted the husband has vacated the premises.  That provides the wife with vacant possession.

15. I have before me today, as I have already indicated, the Application in a Case filed by the wife on 3 May 2016 seeking very specific and detailed orders in relation to the distribution of the funds which have been received from the sale of the property pursuant to orders for final property settlement which were made on 18 July 2014.  The application deals with payment of outgoings incurred prior to the settlement of the transfer of the O Street property to be paid by the husband and that have not yet been incurred, but seeking that the funds be held to secure the payment.

16. The response to the Application in a Case filed by the husband seeks different orders providing for the wife to receive a substantial amount for the sums being the amounts which were payable pursuant to the orders of 14 October 2014, but not in relation to all of the costs that have since been ordered, payable by the husband to the wife.  He also seeks orders providing that some of the monies in the fund be paid to the interveners (being the amount that the husband is due to pay them not the amount that the wife is due to pay them) pursuant to the orders which I made by consent of the parties and interveners on 13 July 2012.

17. I also have before me the response to the application filed by the interveners (I have given them leave to be the interveners) in which the interveners seek that the orders which the wife is seeking for the payment of the funds be dismissed and that order 4 of the orders of 14 October 2014 be discharged “to the extent necessary to satisfy full compliance with the Court order of 13 July 2012” and (3) “that to facilitate order 3, the husband and wife do all acts and things and sign all documents necessary to pay to the second and third respondents the sum of $375,000 from the joint funds held in Withnalls trust account for and on behalf of the husband and the wife, and seeks costs on an indemnity basis.”

18. The other applications also refer to costs. 

19. The decision in this matter has to be considered carefully, taking into account the very long and detailed judgment delivered in July 2014 after a trial which started in July 2012 ran through to part of 2013 and into 2014, and on the basis that there have subsequently been orders made in relation to stays and discharges of orders, appeals and costs.  The costs orders have been substantial. 

20. I also have to take into account the appeal that was instituted and later dismissed. 

21. What needs to be considered is that the order of 13 July 2012 provided by consent that the husband and wife pay the interveners the sum of $375,000 in the reverse proportion found by the Court to be their entitlement under s 79 and s 75(2) of the Family Law Act1975 (Cth) (“the Act”). Paragraph 3 also provides that “the husband and wife pay any respective sums payable to the interveners within seven days of the wife receiving her entitlement proceeds pursuant to judgment or resolution.”

22. The interveners were then released from the proceedings.  Subsequently, after many years, the matters were determined by this Court and by the Full Court.  It now transpires that there are funds from the sale of certain properties and the discharge of some debts.  There is the sum of $788,979.59 which includes interest which has accumulated, being held in the Withnalls Lawyers trust account.  The wife seeks that nearly all of those funds, save and except for the sum of $15,458, be paid to her, and that $15,458 be paid to the husband less any costs in relation to this Application in a Case.

23. That order sought by the wife does not include any payment out of the funds held in the trust account to the interveners by account of the amounts which would be payable to them.  However, the wife clearly states that she will pay to the interveners her share of the funds when she receives the funds in accordance with the orders of 13 July 2012. 

24. The husband and the interveners, however, seek that orders be made which provide for the interveners to be paid from the monies held in trust.  That would prevent them having to recover the funds from the husband and the wife.

25. In his affidavit the husband says he would not have enough funds, if the wife was successful with her orders, to pay his share of the monies due to the interveners.  It is quite correct to say the husband would not receive enough from those trust funds to enable him to make the substantial payment of money due to the interveners.  It is not possible, however, in the circumstances of this case for me to make any finding that he does not have the capacity to pay the interveners or that he would not make arrangements to pay the interveners, his parents and a company connected with him and his parents.

26. The husband also seeks an order that the wife forthwith discharge the mortgage over the O Street property at the wife’s expense.  That is clearly part of the orders already made.  The wife has not indicated any intention not to comply with the orders of the Court. 

27. There are some matters in dispute in relation to the conduct of the matter since the appeal and the arrangements made in relation to the payment of the outgoings for the property.  The husband has, through his counsel, however, indicated that he has every intention to pay the sums which are due and payable in relation to the outgoings for the property up until the time of settlement.  He is indicating that he will clearly pay the outgoings due by the husband up until the time that he has handed the property over to the wife.  I am told that that will happen by 5 o'clock today.

28. There should be no difficulty (and I note from the information provided to me by counsel for the husband on his instruction) that the husband will pay all of the items referred to for the facilities referred to in paragraphs (d), (e) and (f) the outgoings on the O Street property.  An order should be made indemnifying the wife for any amounts which are incurred because the accounts are currently in the joint names of the parties. 

29. I do not consider it necessary, nor part of the enforcement of the orders, to make the orders specifically sought and in relation to the amounts due under (b), (d), (e) and (f).

30. I return to the issue of whether the wife should receive from the funds held in trust sufficient to pay her costs due by the husband to her which would, on the face of it, be paid in priority to the amounts due by the husband to his parents.  That order was made on 13 July 2012. 

31. The affidavit contains a calculation which indicates the amount payable pursuant to those orders which would provide for the wife to pay 30 per cent of that amount and the husband to pay 70 per cent of that amount.

32. The orders which can be paid from the amount held in the trust account which would otherwise be payable by the husband and include the orders made on 11 March for $28,136.92 and $7,660.68. 

33. If the interveners were paid the sum of $262,500 (being the husband’s share due to them) then the balance that would be available to the wife for payment of costs orders would be significantly reduced.

34. I therefore propose to adjourn the further consideration of the final orders and these ex tempore reasons to a time when I will deliver, in my reasons for judgment, the exact amounts which would be payable.  .

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 May 2016.

Associate: 

Date:  26 May 2016