Selwood and Selwood and Ors (No 2)

[2016] FamCA 404

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD AND ORS (NO 2) [2016] FamCA 404

FAMILY LAW – PROPERTY SETTLEMENT – distribution of funds – calculations – where orders are made for the distribution of funds.

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: 26 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

1. The sum of SEVEN HUNDRED AND EIGHTY EIGHT THOUSAND NINE HUNDRED AND SEVENTY NINE DOLLARS AND FIFTY-NINE CENTS [$788,979.59] held in the Withnalls Lawyers Trust Account be distributed as follows:

   (a)payment of the sum of  FOUR HUNDRED AND SEVENTY SEVEN THOUSAND TWO HUNDRED AND NINETY DOLLARS AND NINETY-TWO CENTS [$477,290.92] to the wife in satisfaction of the property settlement orders made on 18 July 2014;

   (b)payment of the sum of TWO HUNDRED AND SIX THOUSAND SEVEN HUNDRED AND SIX DOLLARS AND THREE CENTS [$206,706.03] to the wife on account of amounts due by the husband to the wife pursuant to paragraphs 1 and 2 of the orders made on 26 February 2016, paragraphs 1 and 2 of the orders made on 11 March 2016;

   (c)the sum of EIGHTY FIVE THOUSAND DOLLARS [$85,000] be retained in the Withnalls Lawyers Trust Account pending determination of the amount payable by the husband to the wife as a result of costs orders concerning the unsuccessful appeal;

   (d)when any further costs applications have been determined the balance remaining to be paid to the husband PROVIDED THAT the husband has complied with the orders of 12 May 2016.

2. Save as to the question of costs the applications and responses are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood and Ors (No 2) 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

REASONS FOR JUDGMENT

1. I refer to my ex tempore reasons given on 12 May 2016 and further give reasons on the matters that were reserved on that day.

2. When carrying out the calculations it was not possible to continue the ex tempore reasons on 12 May 2016 and these are therefore the reasons and further orders for the distribution of the funds.

3. I accept to a certain extent the calculations made on behalf of the wife and included in the affidavit filed by the wife on 3 May 2016.  The following is therefore what is an appropriate distribution of the funds.  As at 3 May 2016 the sum of $788,979.59 remained in the trust account.  Pursuant to the judgment of the Court on 18 July 2014 the wife was entitled to the sum of $408,661.67.  It is appropriate that she also receive 70 per cent of the interest which has accrued on the funds, which will therefore be a further $12,998.48.

4. The orders of 18 July 2014 provided for the wife to pay 70 per cent of the costs of the sales (order 23(d)(ii)) therefore the sum of $22,769.23 should be deducted from the amount payable to the wife.

5. The orders of 18 July 2014 also provided for the wife to receive 70 per cent of the excess of the sale price above one million dollars.  This would therefore leave a further payment of $78,400 payable to the wife.

6. Without taking into account therefore the costs orders which have since been made, the wife would be entitled to receive $500,060.15 minus $22,769.23, equals $477,290.92.

7. If the sum of $477,290.92 is paid to the wife from the $788,979.59 this would leave the sum of $311,688.67 payable to the husband.  These calculations obviously do not include the payments due by both the husband and wife pursuant to the consent orders concerning the interveners made on 13 July 2012 which provided for the sum of $375,000 to be paid to the interveners “… within 7 days of the wife receiving her entitlement proceeds pursuant to judgment or resolution” (paragraph 3 of the consent order of 13 July 2012).

8. The wife has not yet received the funds payable to her due to the ongoing dispute and delay due to the appeals and the inability of the parties to agree on the distribution.

9. The husband seeks an order that the sum of $262,500 (being his share of the monies due to the interveners) be paid from the funds in the trust account, with the balance used to pay the amounts due to the wife pursuant to the orders of 26 February 2016 and 11 March 2016.

10. The consent order which provided for payment of the monies to the interveners was not drafted in a manner which provided them with security for that payment.  Rather the orders were drafted to provide that upon the wife receiving her payments pursuant to final orders, the payments by the husband and wife should be made to the interveners within seven days.

11. I therefore do not consider that it is just and equitable, nor appropriate, for the interveners to obtain a variation of the orders made which would provide them with security for those funds.

12. The amount which would otherwise be payable to the husband is as set out above in the amount of $311,688.67.  From this amount however the following amounts should be deducted pursuant to subsequent orders:

    (1)costs order of 26 February 2016 - $170,908.43;

    (2)orders of 11 March 2016 - $28,136.92 and $7,660.68.

13. These amounts total $206,706.03.  This would leave the sum of $104,982.64 payable to the husband. 

14. The wife also received an order for costs in relation to the unsuccessful appeal by the husband.  The wife sought that the sum of approximately $85,000 be held in the trust account pending the resolution of the amount of those costs.  Taking into account the history of this matter, such a request is appropriate.  If this amount is retained in the trust account pending resolution of the costs orders this would leave approximately $20,000.  Previous orders made on 12 May 2016 provided for the husband to pay other amounts.  If the husband has paid those amounts in accordance with the orders then the balance should be paid out to the husband.  If not, the amounts due should be deducted from that amount due to the husband and the balance paid to him.

15. Within seven days of receipt of the funds by the wife pursuant to these orders the husband and wife are both required to comply with the orders which provided for payments of the monies due to the interveners, namely, $112,500 payable by the wife and $262,500 payable by the husband.

16. For the above reasons I make the orders that appear at the commencement of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 May 2016.

Associate: 

Date:  26 May 2016