Surridge and Surridge (No. 2)
[2017] FamCAFC 68
•19 April 2017
FAMILY COURT OF AUSTRALIA
| SURRIDGE & SURRIDGE (NO. 2) | [2017] FamCAFC 68 |
| FAMILY LAW – APPEAL – PROPERTY – Form of orders – Where the appeal was allowed – Where the Full Court re-exercised the discretion under s 79 of the Family Law Act 1975 (Cth) and ordered the parties to file with the registry an agreed form of orders in accordance with the Full Court’s reasons for judgment – Where the parties failed to comply with that order – Parties directed to file Short Minutes of Order and form of orders determined by the Full Court in chambers. |
| Family Law Act 1975 (Cth) ss 79, 106A |
| Surridge & Surridge (2017) FLC 93-757 |
| APPELLANT: | Ms Surridge |
| RESPONDENT: | Mr Surridge |
| FILE NUMBER: | PAC | 4412 | of | 2012 |
| APPEAL NUMBER: | EA | 120 | of | 2015 |
| DATE DELIVERED: | 19 April 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In chambers |
| JUDGMENT OF: | Murphy, Aldridge & Kent JJ |
| HEARING DATE: | By way of oral submissions considered in chambers |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2015 |
| LOWER COURT MNC: | [2015] FamCA 493 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Matthews Folbigg Pty Ltd |
| THE RESPONDENT: | In person |
Orders
That the parties forthwith do all acts and things and sign all documents to cause the following things to occur with respect to the company B Pty Ltd:
(a)The 2013 and 2014 statements of financial position to be amended so as to consolidate into one loan account in the joint names of the parties all advances and loan accounts of the parties reported in the statements of financial position;
(b)Dividends then to be declared to each of the parties fully franked for each of the following financial years:
(i)For the 2013 financial year $37,479 imputation credit and $87,452 franked amount;
(ii)For the 2014 financial year $15,366 imputation credit and $35,855 franked amount;
(iii)For the 2015 financial year $115,505 fully franked;
(c)That on the dividends being declared and the 2015 financial statements and tax return prepared and lodged the company to be struck off the company register conducted by ASIC;
(d)The 2015 financial statements to be prepared so as to:
(i)Write off the office equipment;
(ii)Write off the loan to C Pty Ltd;
(iii)Write off the loan to D Pty Ltd.
That each of the parties shall pay one half of the costs of implementation of these orders including accounting and ASIC fees.
It is further ordered:
That within two (2) months from the date of these orders the husband do all necessary things and sign all necessary documents so as to transfer to the wife his interest in the property at E Street Suburb F New South Wales being the whole of the land comprised in Folio Identifier … (hereinafter referred to as the Suburb F property) and that concurrently with that transfer the wife do all necessary things and sign all necessary documents so as to procure a discharge of the present mortgages secured over the said property in favour of the Commonwealth Bank of Australia being home loan number … and line of credit account number … and in respect of such discharge the husband shall sign all necessary documents for his part necessary to facilitate the wife obtaining a discharge of the said mortgages.
That the wife hereinafter indemnify the husband from all or any liability arising out of the present mortgages secured over the Suburb F property.
That within two (2) months from the date of these Orders:
(a)The husband and wife shall do all things and sign all documents necessary including as director of D Pty Ltd (ACN …) to cause D Pty Ltd as trustee of the Surridge Unit Trust to transfer to the wife the property at CC Street Suburb U being the whole of the land in Lot X Deposited Plan … (hereinafter referred to as the Suburb U property), and to assign to the wife all entitlements pursuant to any lease in respect of the Suburb U property;
(b)The wife shall refinance the mortgage to Citibank secured over the Suburb U property and shall indemnify and keep indemnified the husband as to same;
(c)That subject to these Orders, the wife shall otherwise sign all documents necessary to relinquish any interest and transfer to the husband any units in the Surridge Unit Trust, any interest in the Surridge Family Trust and D Pty Ltd. The wife shall resign all positions that she holds in the trustee company D Pty Ltd and shall transfer to the husband her shareholding in the said company.
That the husband shall hereinafter indemnify and save harmless the wife from all or any liability including any liability to the Australian Taxation Office arising from the activities of the Surridge Unit Trust or its trustee D Pty Ltd.
That otherwise the wife shall be declared solely entitled to:
(a)The 4WD motor vehicle;
(b)Her horse float, horses and equipment;
(c)Her gold watch;
(d)Her jewellery;
(e)Her K Superannuation Fund interest;
and that subject to these orders otherwise the wife is declared solely entitled to the exclusion of the husband to all items of personalty in her possession, custody and control including but not limited to motor vehicles, cash at bank, superannuation, furniture and personal belongings.
That the wife shall hereinafter indemnify and save harmless the husband from all or any liability pursuant to the judgment obtained against the parties by the wife’s parents Mr and Ms G.
That otherwise the husband shall be declared solely entitled to:
(a) His K Superannuation Fund interest;
(b) New boat shell;
(c) Boat “A”;
(d) Boat “B”;
(e) Car parts;
(f) Boat equipment;
(g) Utility vehicle;
(h) Vintage car 1;
(i) Vintage car 2;
(j) Vintage car 3;
(k) Vintage car 4;
(l) Bike;
(m) Motorcycle 1;
(n) Motorcycle 2;
(o) Watch (Swiss);
(p) Watch (Gold);
(q) Watch (Stainless Steel);
(r) B Pty Ltd Bank account;
(s) D Pty Ltd account;
(t) Bank of America account;
(u) German motor vehicle (net);
(v)The loan of $9,709 owed by the husband’s parents to the husband and wife;
and that subject to these orders otherwise the husband is declared solely entitled to the exclusion of the wife to all items of personalty in his possession, custody and control including but not limited to motor vehicles, cash at bank, superannuation, furniture and personal belongings.
That the wife shall within seven (7) days from the date of these orders cause to make available for collection by the husband or his nominee any of the items referred to in the previous order that remain in her possession or control.
That within fourteen (14) days from the date of these orders the wife shall do all acts and things necessary to cause her existing superannuation entitlements in the K Superannuation Fund to be rolled out of that fund to an approved superannuation fund nominated by the wife and upon completion of that rollover the wife shall resign all positions that she holds in the trustee of the K Superannuation Fund, L Pty Ltd, and transfer her shareholding in that company to the husband and the husband shall for his part do all acts and things necessary to promptly facilitate the rollover of the wife’s entitlements in the said fund.
That in the event that either party should neglect or refuse to sign any document or give any consent necessary to give effect to these Orders then a Registrar of the Family Court shall and is hereby empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to sign such documents or give such consents on behalf of the defaulting party, such default to be proved by affidavit.
Liberty to apply as to implementation or enforcement of these orders.
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 Surridge & Surridge (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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 120 of 2015
File Number: PAC 4412 of 2012
| Ms Surridge |
Appellant
And
| Mr Surridge |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter we published our reasons for allowing the appeal on 3 February 2017. The orders of the primary judge were set aside and the Court determined what it considered to be the appropriate property division between the parties (see Surridge & Surridge (2017) FLC 93-757 at [139]).
In allowing the appeal, we made the following orders:
(1)The appeal be allowed.
(2)The orders made by Foster J on 29 June 2015 be set aside.
(3)That as and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) orders be made in accordance with the reasons for judgment delivered herewith in a form agreed upon between the parties and filed by email with the Appeals Registrar within 14 days of the date of these orders.
(4)The husband pay the wife’s costs of the appeal in such amount as is agreed in writing or, failing agreement, as assessed with such costs to be paid within 60 days of the date of agreement or assessment as the case may be.
Order 3 was not complied with. The matter was listed before Aldridge J on
30 March 2017 for the purpose of obtaining draft orders. On that day each party handed to the court proposed Short Minutes of Order purporting to give effect to our earlier reasons and made submissions as to why their proposed orders were preferable. It was agreed that the form of the orders to be made would be determined by the Court in chambers having regard to the transcript of those submissions.
The parties directed their attention only to replacement orders for Orders 6, 7 and 12 of the Orders made by the primary judge on 29 June 2015. They accepted that Orders 1 to 5, 8 to 11, and 13 and 14 as made by the primary judge remained appropriate. We are content to follow that course, save that we would not remake Order 2 given that it now obviously has no utility because under these final orders the wife does not retain either the company D Pty Limited or any units in the Surridge Family Trust. Further, Order 10, which deals with the assets to be retained by the husband, will be amended so as to include a reference to the loan of $9,709 owing to the husband and the wife by the husband’s parents. In our reasons of 3 February 2017 we found that this asset should be retained by the husband.
The parties also asked us to remake Order 15, which provided a timetable for the making of costs applications. That is a matter to be taken up with the primary judge.
The parties agreed that Order 12 as made by the primary judge should be set aside. Neither party proposed a replacement order. Accordingly, we will not remake this order, nor will we make a replacement order.
The parties could not agree on the balance of the orders to be made; however, the only dispute of substance was in relation to Order 7, which deals with the indemnities to be given by the husband.
Order 6 as made by the primary judge required the husband to pay to the wife $129,683. We considered that the appropriate order in lieu of that order was that the wife would receive what was described in the earlier reasons as “the Suburb U property” with the benefit of the lease over it but subject to the mortgage encumbering it. That property is presently owned by D Pty Limited as trustee of the Surridge Unit Trust. Both parties proposed similar but not identical orders to give effect to that part of the judgment. We are therefore content to adopt the orders proposed by the wife in paragraph C of her proposed orders, except for the last sentence of paragraph C(c). That sentence is an order requiring the husband to indemnify the wife against certain liabilities and is in fact a replacement for Order 7, to which we will now turn.
The issue of the form of the Order requiring the husband to indemnify the wife against liabilities in relation to entities being retained by him was not the subject of any submissions made to us with respect to the appropriate orders to be made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The indemnity order made by the primary judge was:
(7)That the husband shall hereinafter indemnify and save harmless the wife from all or any liability including any liability to the Australian Taxation Office arising from the activities of the [Surridge] Unit Trust or its trustee [D] Pty Ltd.
The wife’s proposed order was more extensive and included the following sentence:
(c) … The husband shall indemnify and keep indemnified the wife as to all and any liabilities including loans, loan accounts or monies due to the Australian Taxation Office of the entities referred to in these Orders; including any liabilities arising as a result of her interest, shareholding, unit holding and/or directorship of the said entities.
The other entities (other than those holding the parties’ superannuation interests) that were referred to in the orders were B Pty Limited and C Pty Limited. The parties’ interests in these two companies are the subject of Orders 1 and 2, which were originally made by consent. In circumstances where the parties did not see fit to agree on an indemnity in respect of those companies and where the relevant orders were made by consent we do not see that there is now any basis upon which we would impose such an indemnity on the husband.
The husband in his Short Minutes of Order proposed two orders for indemnity which were:
…
5.6 [The wife] indemnify and keep indemnified [D Pty Ltd, the Surridge Family Trust and the Surridge Unit Trust] from any claim which may now or in the future be made by the wife arising out of her having held positions in, shares and or units in, having been a potential beneficiary of and in relation to any loan account in the entity.
6.That upon the wife complying with Order 5 herein that the husband indemnify and keep indemnify [sic] the wife in relation to all liabilities of [D] Pty Ltd, the [Surridge] Unit Trust and the [Surridge] Family Trust including liabilities to the Australian Taxation Office except those arising from the transfer to the wife pursuant to order 4 herein.
The reference to Order 4 in the proposed Order 6 is a reference to the transfer of the Suburb U property to the wife.
Again, the proposed Order 6 had not been the subject of earlier submissions.
There is no evidence to indicate what, if any, liabilities might arise from that transfer. The husband submitted that such an order was necessary because since 3 February 2017, the date of the Full Court’s orders, the wife had withdrawn $35,000 from the bank account of D Pty Limited. The wife denied that anything untoward had occurred. There was, however, no evidence as to this and, in any event, there is no basis for reopening the rehearing of this matter so as to determine this apparently contested issue.
Given the absence of any submissions or evidence as to the effect of the husband’s proposed Order 6, other than by reference to the $35,000 just mentioned, the effect of that Order cannot be ascertained and thus it is not appropriate to make it.
Accordingly we think the preferable course is to remake Order 7 as made by the primary judge, but to include in it a reference to the Surridge Family Trust as proposed by the wife.
Both parties proposed orders under s 106A of the Act, which empowers a Registrar of the Family Court to sign documents or to provide consent on behalf of a party defaulting in compliance with the above orders.
The wife also sought the following order, which we are not inclined to make:
F. That it shall be sufficient to establish default in the event that any document sent by pre paid express post to the last known address of the party is not returned executed within 10 days of it first being sent.
We do not see that, in this case, we should make orders that would control the evidence the Registrar might regard as appropriate for any hearing under s 106A. For the same reason we are not inclined to make the further order sought by the husband which provides for an indemnity costs order in favour of any person who procures the assistance of the Registrar under s 106A of the Act.
We will otherwise adopt the form of the wife’s proposed order as to the application of s 106A of the Act.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Kent JJ) delivered on 19 April 2017.
Associate:
Date: 19 April 2017
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