Trellis and Trellis and Ors

[2012] FamCA 173

FAMILY COURT OF AUSTRALIA

TRELLIS & TRELLIS AND ORS [2012] FamCA 173

FAMILY LAW - PROPERTY – Interim distribution – where the wife has already received more than 50 per cent of the net assets of the parties if the husband’s assertions as to the value of the parties’ shares in the company are correct – where there is insufficient evidence to indicate that an interim property settlement in favour of the wife could be covered by any advances that may be made to her at final property settlement – orders dismissing the wife’s application

Strahan v Strahan (interim property orders) (2009) FamCAFC 166

APPLICANT HUSBAND: Mr P Trellis

1^st RESPONDENT WIFE: Ms Y Trellis

2^nd RESPONDENT: B Holdings Pty Ltd

3rd RESPONDENT:	G Pty Ltd
4th RESPONDENT:	Mr N Trellis
5th RESPONDENT:	Ms A Trellis
6th RESPONDENT:	V Pty Ltd
7th RESPONDENT:	Mr E Trellis

FILE NUMBER: SYC 3598 of 2007

DATE DELIVERED: 13 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT HUSBAND: Mr Dura

SOLICITOR FOR THE APPLICANT HUSBAND: Manion McCosker

COUNSEL FOR THE 1^ST RESPONDENT WIFE: Mr Gould

SOLICITOR FOR THE 1^ST RESPONDENT WIFE: McLaughlin & Riordan

COUNSEL FOR THE 2^ND RESPONDENT: No Appearance

SOLICITOR FOR THE 2^ND RESPONDENT: Swaab Attorneys

COUNSEL FOR THE 3^RD,  4^TH, & 5^TH RESPONDENT: No Appearance

SOLICITOR FOR THE 3^RD,  4^TH, & 5^TH RESPONDENTS: York Family Law

COUNSEL FOR THE 6^TH & 7^TH RESPONDENT: Mr Batey

SOLICITOR FOR THE 6^TH & 7^TH  RESPONDENT: Mills Oakley Lawyers

Orders

IT IS ORDERED

1. That the Application in a Case filed by the wife on 27 February 2012 (relating to the 6^th and 7^th respondents) be stood over to the trial.

2. That the costs of the 6^th and 7^th respondent in relation to the application for costs against those respondents made by the wife today be reserved to the final hearing.

3. That the costs of all parties be reserved to the final hearing.

4. That the solicitors for the 6^th and 7^th respondents and counsel be excused from further appearance today.

5. That the Application in a Case filed by the wife on 16 December 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Trellis & Trellis and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3598 of 2007

Mr P Trellis

Applicant Husband

And

Ms Y Trellis

1^st Respondent Wife

And

B Holdings Pty Ltd

2^nd Respondent

And

G Pty Ltd

3^rd Respondent

And

Mr N Trellis

4^th Respondent

And

Ms A Trellis

5^th Respondent

And

V Pty Ltd

6^th Respondent

And

Mr E Trellis

7^th Respondent

REASONS FOR JUDGMENT

1. The proceedings before the court relate to an application for property settlement between Mr P Trellis, the husband, and Ms Y Trellis, the wife.  Those proceedings are listed for hearing before Loughman J for four days commencing on 8 May and, including the husband, there are seven respondents to those proceedings.

2. The assets of the husband and the wife, insofar as they can be ascertained from the evidence which is before me, consist of money in controlled moneys accounts totalling $252,000, and shares in a company known as B Holdings Pty Ltd. 

3. In relation to the money in the controlled moneys account, those are funds which derive from the sale of a property previously owned by the husband and the wife.  The existing orders in relation to those moneys allow the moneys to be used to pay experts’ fees for the preparation of the case.  There is no evidence before me about what the experts’ fees are likely to be, but they relate to the valuation of shares in B Holdings Pty Ltd, and I am advised by counsel for the husband and the wife that that entity is currently being valued by a single expert accountant, and by a remuneration expert.

4. The husband and the wife own two shares in B Holdings Pty Ltd, the other two shares being owned by a company which is owned by the husband’s parents.  The wife’s estimate of the value of the parties’ interest in B Holdings Pty Ltd is $750,000. 

5. The husband’s estimate of the value of the shares is $145,500 per share, a total of $293,000.  He asserts that he owes a debt to B Holdings Pty Ltd of $202,000, and a further debt to his parents of $83,000.  If the husband’s assertions of value ultimately are found to be correct, then the only asset which will remain is whatever is left in the controlled moneys account.  

6. It is agreed between the parties that the wife has already received $135,000 of money which the husband will assert should be added back for the purpose of the proceedings.  If the husband’s assertions as to the value of the company are correct, the wife has already received more than 50 per cent of the net assets of the parties. 

7. The Full Court in Strahan v Strahan (interim property orders) (2009) FamCAFC 166 said at paragraph 137:

   Once a court proceeds to exercise the power in section 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in section 79(4) including by reference to section 79(4)(e) the matters in section 75(2) so far as they are relevant.  However consideration of such matters may be brief and if it is established that it seems likely to the Court that the applicant will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made.

8. In the evidence relied upon in the proceedings before me, there is no evidence of the contributions made by each of the husband and the wife.  The husband asserts a far greater contribution than that of the wife, although there is no evidence to support that assertion. 

9. It would be unsafe for me to assume that the contributions of the parties will be equal, and there is no evidence upon which I can make a determination of what the likely section 75(2) adjustment would be.  I therefore cannot be satisfied on the evidence before me that it is possible to make an order for interim property settlement in favour of the wife which would be sufficiently covered by any advance that may be made to her. 

10. If it is unsafe for me to make an order for interim property settlement because I cannot be satisfied that the amount the wife will receive will cover the advance, it is equally unsafe to make the order using the head of power which would allow me to make an order for interim costs, and I dismiss the wife’s application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 March 2012.

Associate: 

Date:  13 March 2012