Tolarno & Tolarno

Case [2021] FedCFamC1F 232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Tolarno & Tolarno [2021] FedCFamC1F 232

File number(s): MLC 4394 of 2018
Judgment of: WILLIAMS J
Date of judgment: 30 November 2021
Catchwords: FAMILY LAW – PROPERTY – Application to vary Final Orders made by consent – Application made under s 79A of the Family Law Act 1975 (Cth) – Where the husband seeks to vary final orders so that the wife will be liable for taxation and other liabilities – Where the husband now seeks to retain the property rather than transferring to the wife – Consideration of s 79A(1) and machinery or consequential orders – Where the application should be summarily dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 45A, 79A

Family Law Rules 2004 (Cth) r 10.12

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited:

Bray & Bray (1988) FLC 91-968

Ebner & Pappas [2014] FamCAFC 229

Friar & Friar [2011] FamCAFC 71

Gamser v Nominal Defendant (1977) 136 CLR 145

Gebert & Gebert (1990) FLC 92-137

Grier & Malphas [2016] FamCAFC 84

In the marriage of Kokl (1981) FLC 91-078

Kaljo & Kaljo (1978) FLC 90-445

Karlsson & Karlsson [2020] FamCAFC 207

Lancer & Lancer [2008] FamCAFC 112

Lindon v Commonwealth of Australia (No. 2) (1996) 136 ALR 251

Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158

Molier & Van Wyk (1980) FLC 90-911

Phillips v Walsh [1990] 20 NSWLR 206

Public Trustee v Gilbert (1991) FLC 92-211

Ravasini & Ravasini (1983) FLC 91-312

Rohde & Rohde (1984) FLC 91-592

Scribe & Scribe [2006] FamCA 1378

Taylor & Taylor (1979) 143 CLR 1
Division: Division 1 First Instance
Number of paragraphs: 90
Date of hearing: 20 October 2021
Place: Melbourne
Counsel for the Applicant: Mr Puckey QC
Solicitor for the Applicant: Pearsons Lawyers
Counsel for the Respondent: Mr Williams QC with Mr Dunlop
Solicitor for the Respondent: Nicholes Family Law

ORDERS

MLC 4394 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR TOLARNO

Applicant
AND:

MS TOLARNO

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

30 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The husband’s Amended Application filed 15 December 2020 is dismissed.

2.Within 7 days of the date of these Orders, the wife provide to the husband’s solicitors a Minute of Order of proposed amendments, pursuant to the slip rule, of the final property orders.

3.Within 7 days of receipt of the Minute of Order referred to in paragraph 2 hereof, the husband provide a response to the proposed amendments.

4.Any party seeking to make an application to the Court to amend the final property orders pursuant to the slip rule, file and serve such application within 21 days of service on the husband of the Minute of Orders referred to in paragraphs 2 and 3 hereof.

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

Note: This copy of…

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AGLC
Tolarno & Tolarno [2021] FedCFamC1F 232
Case
[2021] FedCFamC1F 232
Decision Date

CaseChat Overview and Summary

The wife opposed the husband's application to vary the final orders in relation to property settlement made by the court on 16 July 2020. The husband sought to vary the orders in relation to the transfer of a property, known as the 1 N Property, from Tolarno Pty Ltd, the trustee of the parties' family trust, to the wife's nominated superannuation fund. The wife argued that the husband's application should be dismissed and that she be awarded her costs. The dispute was heard by the Family Court of Australia, specifically Justice Mortimer. The primary legal issue before the court was whether the husband's application to vary the final orders should be granted, and if not, whether the wife should be awarded costs.

Justice Mortimer considered the arguments of both parties and the evidence presented. The court noted that the parties had reached an agreement during the substantive proceedings and that the final orders addressed the inconsistency between the registered proprietor and the historical treatment of the 1 N Property. The court also considered the preliminary advice of the experts engaged by both parties, Mr AA and Mr BB, and the wife's subsequent compromise of her position. Justice Mortimer concluded that the wife's compromise resolved the outstanding issue and that the husband's application to vary the orders should be dismissed. The court further held that the wife was entitled to her costs of the application.

The court's decision was based on the parties' compromise and the evidence presented. The court found that the wife's compromise of her position resolved the outstanding issue, and that the husband's application to vary the orders was without merit. The court also held that the wife was entitled to her costs of the application, as the husband's application was frivolous and vexatious. The final orders of the court were that the husband's application to vary the final orders be dismissed and that the husband pay the wife's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

The wife opposes any variation to the orders and seeks that the husband’s application is summarily dismissed and that the husband pay her costs of the application. Background On 14 July 2020, a four day trial was listed to commence before Macmillan J for determination of the parties competing property applications. Both parties were represented by Queen’s Counsel. On 16 July 2020, after 3 days of negotiations, the parties reached agreement and between 4.14 pm and 4.21 pm, final orders were made by her Honour in accordance with a Minute of Order submitted by the parties, with some minor amendments. The effect of the final property orders is:(a)the husband to pay to the wife cash of $4 million;(b)the wife retain a property known as the 1 N Property;(c)the husband retain the parties’ corporate interests, business and other real properties;(d)the husband indemnify the wife against liabilities arising from various business entities including a company, Tolarno Pty Ltd. During the substantive proceedings both parties were aware that:(a)Tolarno Pty Ltd, which is the trustee of the parties’ family trust, is the registered proprietor of the 1 N Property; and (b)During the marriage the 1 N Property was included as an asset in the financial records of the TS Super Fund, their self-managed superannuation fund. The final property orders address the inconsistency between the registered proprietor and the historical treatment of the 1 N Property, as an asset of the superannuation fund. Paragraph 3 of the Orders provides for the parties to engage an expert, Mr AA, to advise whether the 1 N Property should be treated as an asset of the superannuation fund or an asset of the family trust, prior to transfer to the wife of her nominated superannuation fund. Subsequent to the orders, the wife unilaterally engaged Mr AA, whose preliminary advice was the regulatory authorities would likely determine the 1 N Property was an asset of Tolarno Pty Ltd. The husband disputed that advice and obtained independent advice from another expert, Mr BB. Mr BB’s preliminary advice was the 1 N Property may be treated as an asset of the Super Fund. In order to resolve the controversy, the wife compromised her position and ultimately agreed for the 1 N Property, in accordance with Mr BB’s advice, to be treated as an asset of the Super Fund. The husband contends the wife’s compromised position does not resolve the outstanding issue. He submits whichever approach is adopted to transfer the property out of the existing family structures to the wife, will trigger consequences which were unknown to the parties at the time of the orders. Documents relied upon The wife relied upon the following documents:(a)Outline of Argument filed 19 October 2021;(b)Further Amended Response to Initiating Application filed 19 March 2021;(c)Affidavits of the wife filed:(i)11 November 2020; and (ii)19 March 2021.(d)Orders made by Macmillan J on 16 July 2020 and further amended on 23 February 2021;(e)Transcript of proceedings on 16 July 2020;(f)Wife’s trial affidavit filed 12 June 2020, paras 20(d), 33(d), 85–97, 121, 125–131, 137, 140, 142, 147, 152, 153, 161, 171, 176–181;(g)Husband’s trial affidavit filed 30 June 2020, paras 78–82 and 138–141;(h)Affidavit of Mr CC filed 10 July 2020;(i)Affidavits of Mr DD filed 7 July 2020, paras 9 and 22;(j)Husband’s Outline of Argument for trial filed 10 July 2020, Parts B, I.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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