SOMERS& ETTRIDGE

[2018] FamCA 874

FAMILY COURT OF AUSTRALIA

SOMERS& ETTRIDGE [2018] FamCA 874

FAMILY LAW – PROPERTY – interim applications – where the applicant seeks $14,500 but is unable to identify the head of power upon which he seeks to rely– where the applicant seeks disclosure from the respondent – where orders have already been made in relation to disclosure – issue of disclosure will need to be determined by the trial judge – where the applicant seeks litigation funding – where the litigation funding application must fail in accordance with the provision of s 117 of the Family Law Act 1975 (Cth) – where the respondent proposes that the applicant extend the loan facility against the real property up to $50,000 – order made permitting the applicant to borrow $50,000 against the real property with the sum to be characterised as part property settlement.

FAMILY LAW – INJUNCTIONS – interim injunction made preventing the applicant from dealing with real property and the parties’ self-managed superannuation fund.

Family Law Act 1975 (Cth) ss 79, 117 Family Law Rules 2004 (Cth)
APPLICANT:	Mr Somers

RESPONDENT: Ms Ettridge

FILE NUMBER: MLC 11262 of 2015

DATE DELIVERED: 7 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 September 2018

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Paterson

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

IT IS ORDERED

1. That except as otherwise provided and until further order, the respondent MR SOMERS be restrained by injunction from doing any act or thing that may cause the property situated at and known as B Street, Suburb C in the State of Victoria being the whole of the land contained in Certificate of title Folio Identifier Volume … Folio … (“the Suburb C property”) to be disposed, of sold, transferred, assigned, leased, further mortgaged or further encumbered in any manner whatsoever.

2. That until further order, the respondent MR SOMERS be restrained by injunction from further increasing the balance of the F Bank home loan account number ... secured over the Suburb C property, currently in the sum of $124,888.17 (as at 30 June 2018) save for the purpose of borrowing $50,000 so as to meet his costs to obtain legal representation for the purposes of the final hearing scheduled to occur on 23 October 2018, with this sum to be characterised as part property settlement to the respondent and with the respondent to meet all repayments (interest and principal) with respect to those borrowings.

3. That until further order, the respondent MR SOMERS and/or his servants and/or his agents, be restrained by injunction from withdrawing, disposing of or otherwise dealing with the funds held in F Bank Prime Access Account No. …54, F Bank Account No. …56 held in the name of the G Super Fund and/or any other bank accounts held in the name of the G Super Fund.

4. That these orders be forthwith served upon F Bank by the applicant.

BY CONSENT IT IS ORDERED

1. That the respondent MR SOMERS permit Mr H of J Valuers access to inspect the Suburb C property at 10.30am on Friday 14 September 2018.

BY THE COURT IT IS ORDERED

1. That the Application in a Case filed 28 August 2018 and the Response to Application in a Case filed this day be otherwise dismissed.

2. That the wife’s costs of this day be reserved to the Trial Judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today in accordance with orders that I made on 7 June 2018 listing the matter for a compliance check.  The proceedings relate to a property dispute between the parties.  That dispute is listed for final hearing before his Honour Baumann J to commence on 23 October 2018. 

The Applications

1. The purpose of today’s listing was to ensure that the matter was ready to proceed on its listed trial date.  The respondent to the principal proceedings, Mr Somers, filed an Application in a Case on 28 August 2018.  That application is supported by his affidavit filed 24 August 2018.  That application seeks orders, firstly, in relation to what might be described as litigation funding.  The applicant seeks an order that the respondent pay to him the sum of $62,250 to fund legal and incidental costs such that the applicant is not left unrepresented at trial.

2. The second issue raised in that application is an application that the respondent return to the applicant a further sum of $14,500 as a matter of urgency.  The third issue raised in the application goes to issues of disclosure.  The applicant alleges that there has been ongoing non-disclosure of documents, and in particular, he identifies several classes of documents at paragraph 6 of his Application in a Case. 

3. The applicant in the principal proceedings has filed a Response to an Application in a Case this day.  That response is supported by her affidavit filed the 6 September 2018.  The orders sought in the Response to an Application in a case are as follows; first, the respondent seeks the dismissal of the Application in a Case filed on behalf of the applicant.  Second, the respondent seeks injunctions against the applicant restraining him from dealing with the property at B Street, Suburb C, which is the major asset the subject of the dispute.  Secondly, she seeks an injunction restraining the applicant from dealing with the home loan account secured against the B Street property, save in the event that he seeks to borrow up to $50,000 to meet costs of legal representation, such sum to be characterised as a part property settlement. 

4. Further, an injunction is sought by the respondent restraining the applicant from withdrawing, disposing of or otherwise dealing with funds held in the F Bank in the name of the parties’ self-managed superannuation fund.  Orders are also sought by the respondent to enable the single expert valuer appointed by the parties to inspect the Suburb C property which is currently occupied by the applicant. 

Background

1. The background to the applications is as follows. 

2. The parties commenced cohabitation in January 2007.  Separation occurred in January 2015. 

3. The applicant in the principal proceedings is Ms Ettridge.  She is aged 51 years.  She is unemployed and has been unemployed since 2009.  She deposes that she has provided assistance to the respondent in the conduct of his business, but otherwise has been unemployed. 

4. The respondent in the principal proceedings is Mr Somers.  He is aged 54 years and is self-employed.  He has conducted a business known as the K Pty Ltd, which is a management consulting company. 

5. As I have already noted, the principal asset, the subject of the dispute in the proceedings, is the property at B Street, Suburb C, which is a property registered in the name of the respondent in the principal proceedings. 

Discussion

Payment of $14,500 by the respondent

1. The first issue I am asked to consider by the applicant in today’s application is the question of whether he should be paid the sum of $14,500 to address what he describes as issues of financial hardship.

2. The applicant in support of that application made submissions to the effect that the respondent has removed $500,000 from the relationship.  He submitted that he needed the funds in order to meet his expenses, including payment of council rates.  He further submitted that he had nothing to eat over a period of about a month, on and off, as a result of his financial hardship. 

3. I invited the applicant to identify the head of power upon which he relied in relation to that application. He submitted that he relied upon s 79 of the Family Law Act 1975 (Cth) (“the Act”).

4. The respondent opposes the orders sought.  It was submitted on her behalf that the applicant has not identified an appropriate head of power to enable the Court to make orders as sought.  Further, it was submitted on behalf of the respondent that whether or not the applicant is entitled to a reimbursement of moneys, is a matter for the trial judge.

5. The evidence and assertions made by each of the parties in relation to this issue is a matter that requires a testing of evidence, and therefore the matter should await the trial which I note is just over one month away.  I accept the submissions made on behalf of the respondent in relation to that issue.  The applicant has failed to identify the source of power under which it is said that I am able to make the orders sought. 

6. Further, it is clear from the affidavit material filed by the parties that there are live issues as to how funds that have accumulated during the course of the relationship have been treated by them.  For example, the applicant is critical as to the conduct of the respondent and how she has managed funds; the respondent concedes in her affidavit material that she received compensation payments arising from a serious motor vehicle accident in which she was involved in about 2009 and says that she has applied funds received towards meeting her legal costs and also to meet her living expenses.  It is clear that the applicant does not accept that evidence.  That highlights the fact that there needs to be a testing of evidence in relation to these matters.  Those matters can properly be dealt with at the final hearing of the proceedings. 

Disclosure

1. The second issue upon which the applicant made submissions today was as to disclosure.  As I have earlier noted, he seeks a number of orders seeking specific disclosure in relation to documents dating back to 2007.  The respondent in her affidavit filed 6 September 2018 provides a detailed response in relation to the many allegations made by the applicant with respect to the issue of disclosure.

2. The essence of those responses is either that the documents available and in the possession and control of the respondent have already been made available to the applicant or alternatively that the documents sought either no longer exist or are not within the possession and control of the respondent. 

3. The respondent too complains that there has been non-disclosure by the applicant.  The applicant denies those allegations.  This again highlights that there needs to be a testing of evidence.  I note from submissions made by both the applicant and counsel for the respondent that each party has now come to a point where they have issued subpoenas to enable them to obtain information they say is necessary to enable them to prosecute their case.

4. In the circumstances, I do not propose to make any further orders with respect to disclosure.  I have already previously made orders in relation to that issue. 

5. I further note that each of the parties have obligations with respect to disclosure, as provided in the Family Law Rules 2004 (Cth). The obligations with respect to disclosure are ongoing. Each of the parties has an obligation to continue to meet disclosure requirements in accordance with the rules. The failure to do so may invite inferences to be drawn by the trial judge at the trial. Again, these are issues that are ultimately matters that will need to be ventilated and determined by the trial judge upon a testing of evidence.

Litigation funding and partial property settlement

1. The third issue identified by the applicant in his Application in a Case is the question of what I will describe as litigation funding.  The applicant has identified that he seeks a sum of $62,250 to enable him to obtain representation for the final hearing. 

2. The respondent meets that application by proposing that the applicant draw down on the mortgage facility or loan facility that is secured against the title to the Suburb C property.  In submissions made on behalf of the respondent, it is noted that the applicant has again failed to identify a head of power under which it is said that the litigation funding order be made.  I accept that submission.

3. The respondent proposes that the applicant extend the loan facility secured over the Suburb C property to draw up to $50,000 for the purposes of funding legal representation, such release of funds to be characterised as a part property settlement.  This would seem to be the only possible head of power under which it would be appropriate to make such order.  Such order would enable the applicant to have access to funds if he chooses to engage lawyers to represent him at trial.  It is common ground that the applicant’s entitlement to property is greater than the amount to be drawn down by him.

4. Given that circumstance, I am satisfied in the circumstances of the case that that is an appropriate order.  It will provide the applicant with a fund to secure legal representation for the trial. 

Injunctions

1. The next issue which I am asked to determine is the question of injunctive relief, which is sought by the respondent.  The respondent seeks an order that will have the effect of restraining the applicant from dealing with the real property, save as I have identified in relation to borrowings for the purposes of funding his litigation.

2. There is also injunctive relief sought in relation to the funds held in accounts in the name of the parties’ self-managed superannuation fund.  The basis for that application is set out in the affidavit of the respondent at paragraphs 35 to 40 inclusive.  In addition, reliance is placed upon Annexure TE-6 to that affidavit. 

3. The circumstance that gives rise to the application is that the applicant has taken action unilaterally to remove the respondent as a trustee of the parties’ self-managed superannuation fund. It is said that that action was taken without prior notice to the respondent.  The respondent became aware of that action only after a release of documents produced under subpoena.  Included in those documents was a letter from the applicant to the F Bank in which the applicant confirmed that the respondent had been removed as a trustee of the fund.  That letter, which is dated 21 June 2018, states in the fifth paragraph as follows:

   [Ms Ettridge] is no longer a trustee of the [G] Super Fund by Law and has been removed in relation to dishonesty as I am required to do in accordance with Trust Law, The Trust Deed, the Superannuation Industry Supervision Act 1993 and the Superannuation Industry Supervision Regulations 1994.

4. Further, at page 3 of that letter, the applicant states, and I quote:

   By law, I am not at liberty to discuss the legal proceedings against [Ms Ettridge] until they are finalised.  However, I am able provide you with a copy of the minutes of the Trustees meeting where [Ms Ettridge] was removed as a trustee if you legally request them.  These minutes detail extensively the grounds upon which [Ms Ettridge] was removed. 

   (emphasis omitted)

5. As I have noted, it was submitted on behalf of the respondent that she had no notice of these actions taken by the applicant until reading this correspondence which was produced under subpoena. 

6. That correspondence also notes at page 3 under the subheading “SUGGESTIONS”, paragraph 1:

   Please have someone contact me in relation to the reasons [Ms Ettridge] remains as a signatory on the accounts. 

7. What transpired after that letter was sent is that the respondent was removed as a signatory to the superannuation fund accounts and the respondent deposes that she has not been able to access information in respect of those accounts as a result of her removal as a signatory and as a trustee of the superannuation fund. 

8. The applicant opposes the injunctions.  He says it will stymie his ability to deal with the assets of the superannuation fund and it will compromise the ability of that fund to prosper. 

9. The injunction is an injunction that will continue until the trial, which is only a matter of five and a half weeks away.  It is an injunction that will continue for a relatively limited period of time.  I am satisfied in circumstances where it is not denied that the respondent has been removed as a trustee and as a signatory of the accounts for the superannuation fund, and further, it is not denied by the applicant that there was no notice given to the respondent of those actions, that it is appropriate that the injunctions as sought be made.

10. I note that the respondent offered to consent to mutual injunctions to ensure that the parties would be in an identical position with respect to the operation of the Fund.  The applicant declined that proposal. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 September 2018.

Associate: 

Date:  7 September 2018