SHARMA & SHARMA - [2013] FamCA 793

FAMILY COURT OF AUSTRALIA

SHARMA & SHARMA

[2013] FamCA 793

FAMILY LAW – ENFORCEMENT – Superannuation split – Application for receivers to be appointed to enforce orders in respect of wife’s entitlement to a superannuation split from a self-managed fund – Non-compliance with previous Orders in respect of the superannuation split to date by the Respondent – Respondent has not participated in proceedings – Respondent served at last know residential address, company address and by substituted service on the accountants

FAMILY LAW – COSTS – Indemnity costs – Conduct of the Respondent – Proceedings necessitated by failure of the Respondent to comply with previous Orders

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations (2001) (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Costello & Anor & Condi & Anor [2012] FamCA 355
Henley & Garrett and Garrett & Henley [2010] FMCAfam 314
Joyce & Fante [2013] FamCAFC 141
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Sharma

RESPONDENT:

Dr Sharma

FILE NUMBER:

PAC

522

2010

DATE DELIVERED:

16 October 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

30 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Grew of Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

Pursuant to Rule 20.47 of the Family Law Rules 2004 (Cth) (“the Rules”), Mr B, Mr C and Mr D of E Chartered Accountants be appointed as Joint and Several Receivers (“the Receivers”) of:
1.1The property and income of the Sharma Pty Ltd Superannuation Fund (“the Fund”);
1.2The property and income of
(a) Sharma Pty Ltd (“the Company”); and/or
(b)Mr Sharma (“the husband”) and Ms Sharma (“the wife”)
in their capacity as trustee or trustees (“the Trustees”) of the Fund
so as to give effect to orders 14 to 18 of the Orders made in this Court on 4 October 2011, these orders, and any orders for costs payable by the husband.
In addition to the wife’s entitlements pursuant to Orders 14 to 18 of the Orders made in this Court on 4 October 2011, the wife shall be entitled to interest on the outstanding amount for the period from 15 November 2011 and to the date of payment such interest pursuant to Regulation 45D of the Family Law (Superannuation) Regulations 2001 (Cth).
Pursuant to Rule 20.47(3) of the Rules, the Receivers are authorised to do (in the Receiver’s name or otherwise) anything that the husband and/or the Trustees may do.
Pursuant to Rule 20.47(4) of the Rules, the Receivers’ powers operate to the exclusion of the powers of the Trustees during the receivership in relation to compliance with Orders 14 to 18 of the Orders made in this Court on 4 October 2011.
The Receivers’ remuneration to be paid from the Fund and such remuneration be calculated in accordance with the standard rates effective from time to time of E Chartered Accountants, Sydney.
There be no security given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read SHARMA & SHARMA and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FamCA 793
Decision Date: 16 October 2013

CaseChat Overview and Summary

In the matter of SHARMA & SHARMA, Hannam J of the Family Court of Australia considered an application by the wife for the appointment of receivers to enforce previous orders concerning a superannuation split from a self-managed fund. The husband, who was the respondent, had not participated in the proceedings, despite being served at his last known residential address, company address, and by substituted service on the accountants. The core of the dispute was the husband's non-compliance with prior orders relating to the wife's entitlement to a portion of his superannuation.

The court was required to determine whether to appoint joint and several receivers to enforce the existing superannuation split orders and to give effect to any costs orders. Additionally, the court needed to consider the wife's entitlement to interest on the outstanding superannuation amount and the terms under which the receivers would operate, including their powers, remuneration, and reporting obligations. The court also had to address the husband's conduct in necessitating these enforcement proceedings and the appropriate basis for awarding costs.

Hannam J applied Rule 20.47 of the Family Law Rules 2004 (Cth) to appoint Mr B, Mr C, and Mr D of E Chartered Accountants as joint and several receivers of the property and income of the Sharma Pty Ltd Superannuation Fund, Sharma Pty Ltd, and the husband and wife in their capacity as trustees. The receivers were empowered to take actions that the husband and trustees would ordinarily be able to take, with their powers operating to the exclusion of the trustees' powers in relation to the enforcement of the superannuation orders. The court also ordered that the wife be entitled to interest on the outstanding amount pursuant to Regulation 45D of the Family Law (Superannuation) Regulations 2001 (Cth). The husband was ordered to pay the wife's costs of the application on an indemnity basis, as well as the receivers' costs and expenses to the extent the fund was insufficient. Further orders included the husband's co-operation with the receivers, the receivers' monthly reporting, and restraints on the trustees dealing with funds in the superannuation fund, as well as restraints on the husband dealing with specific properties.

Orders

Orders of the court

Pursuant to Rule 20.47 of the Family Law Rules 2004 (Cth) (“the Rules”), Mr B, Mr C and Mr D of E Chartered Accountants be appointed as Joint and Several Receivers (“the Receivers”) of:

1.1 The property and income of the Sharma Pty Ltd Superannuation Fund (“the Fund”);

1.2 The property and income of

(a) Sharma Pty Ltd (“the Company”); and/or

(b) Mr Sharma (“the husband”) and Ms Sharma (“the wife”)

in their capacity as trustee or trustees (“the Trustees”) of the Fund

so as to give effect to orders 14 to 18 of the Orders made in this Court on 4 October 2011, these orders, and any orders for costs payable by the husband.

In addition to the wife’s entitlements pursuant to Orders 14 to 18 of the Orders made in this Court on 4 October 2011, the wife shall be entitled to interest on the outstanding amount for the period from 15 November 2011 and to the date of payment such interest pursuant to Regulation 45D of the Family Law (Superannuation) Regulations 2001 (Cth).

Pursuant to Rule 20.47(3) of the Rules, the Receivers are authorised to do (in the Receiver’s name or otherwise) anything that the husband and/or the Trustees may do.

Pursuant to Rule 20.47(4) of the Rules, the Receivers’ powers operate to the exclusion of the powers of the Trustees during the receivership in relation to compliance with Orders 14 to 18 of the Orders made in this Court on 4 October 2011.

The Receivers’ remuneration to be paid from the Fund and such remuneration be calculated in accordance with the standard rates effective from time to time of E Chartered Accountants, Sydney.

There be no security given by the Receivers.

The husband and the Trustees co-operate with the Receivers and shall:

7.1 Provide such documents, financial records, bank statements, tax records and any other financial document as required by the Receivers within twenty-four (24) hours of request by the Receivers;

7.2 Provide any other information sought by the Receivers which relate to the income and/or property of the Fund and the Trustees (in their capacity as Trustees of the Fund).

The Receivers shall submit accounts to the following parties on a monthly basis:

8.1 The wife;

8.2 The husband, by delivery by post to …;

8.3 The Company, by delivery by post to …;

8.4 The principal Registrar of the Parramatta Registry of the Family Court of Australia for placement on the Court file.

Pending compliance with Order 1 herein the Trustees are restrained from dealing with funds in the Fund to the extent that would defeat payment to the wife as set out in Order 1 above.

10.

The husband shall pay:

10.1 The wife’s costs of and incidental to this application on an indemnity basis as agreed or assessed; and

10.2 The Receivers’ costs and expenses on an indemnity basis, to the extent that the amount of the Fund is insufficient.

11.

That pending compliance with Orders 1 to 10 herein the husband is restrained from selling, assigning, transferring, encumbering or otherwise dealing with the properties at:

11.1 F Street, Suburb G being the whole of land contained in Folio … and ...

11.2 H Street, Suburb I being the whole of the land contained in Folio Identifier ...

11.3 J Street, Suburb K being the whole of the land contained in Folio Identifier ...

and the wife and the Receivers shall be at liberty to lodge a caveat and a Request over those properties pending compliance with these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.