Tritton and Poyzer

[2012] FamCA 97

FAMILY COURT OF AUSTRALIA

TRITTON & POYZER [2012] FamCA 97

FAMILY LAW - COSTS – application by the husband seeking costs against the wife – where the wife discontinued her application after the husband filed his responding documents – where the matter has a long history and an appeal before the Full Court is pending – just and equitable – where it was not just and equitable for a costs order to be made in the circumstances – application dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Tritton

RESPONDENT: Mr Poyzer

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 22 February 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: C E Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Randle

SOLICITOR FOR THE RESPONDENT: Randle & Taylor

Orders

1. Paragraphs 16, 17 and 18 of the Orders dated 3 August 2010 are continued in force (only subject to any Order the Full Court may subsequently make) with amendment to paragraph 18 to provide for the documents to be provided by 9 March 2012, paragraphs being:

(16)Hereafter the husband do indemnify the wife and procure any trustee of any of the entities of the [Poyzer] Group to indemnify the wife and keep her forever indemnified with respect to:

(a)all debts and liabilities of the husband past, present and future;

(b)all debts and liabilities of the [Poyzer] Group past, present and future;

(c)all choses in action against either of the parties or any of the [Poyzer] Group and in particular but not limited thereto against the wife arising out of her position as a director, secretary, shareholder or beneficiary of any of the [Poyzer] Group;

(d)any liability of the wife in respect of any guarantee executed by the wife in support of borrowings debts and liabilities of the husband or any of the [Poyzer] Group;

(e)any debt or debit loan account due by the wife to any of the [Poyzer] Group;

(f)all income tax, capital gains tax, GST or other taxation liabilities due by the husband and any of the [Poyzer] Group or due by the wife of or in relation to these orders, the allocation of monies or income to the wife from any of the [Poyzer] Group, of or incidental to the transfer of any interest of the wife in the [Poyzer] Group to the husband and the payment pursuant to these orders or the orders of 18 June 2010 SAVE AND EXCEPT that the wife shall pay the income tax, (if any) which is already assessed and outstanding due by her at 30 June 2008 (SIXTY NINE THOUSAND SEVEN HUNDRED AND THIRTY DOLLARS [$69,730.00]) and any other income tax or capital gains tax hereafter payable by her which does not relate to any income, distribution, payment or adjustment from the husband or the [Poyzer] Group.

(17)On settlement day or as soon thereafter as the husband complies with payment of the sum due under paragraph (3) in accordance with section 90MT (1)(b) of the Family Law Act 1975 (Cth):

(a)the husband shall be entitled to the specified percentage, being 100 per cent of each splittable payment made out of the wife’s interest in the self-managed superannuation fund, [Poyzer] Investments Pty Ltd Superannuation Fund (the old fund);

(b)the wife’s entitlement is correspondingly reduced;

(c)sub-paragraph (a) has effect from the operative time;

(d)the operative time is the date of transfer of the transferrable benefits;

(e)[Poyzer] Investments Pty Ltd being the trustee of the old fund shall do all such acts and things and sign all such documents as may be necessary to:

(i) calculate in accordance with the requirements of the Family Law Act 1975 the entitlement created in paragraph (1) of these orders; and

(ii)  pay the entitlement whenever a splittable payment becomes payable;

(f)the wife do:

(i)   tender her resignation as a director of the trustee of the fund;

(ii)  transfer to the husband her shares in the trustee fund and resign as a member of the fund;

(g)as and from the making of these orders the husband shall be responsible for and indemnify the wife in relation to the fund and any liability of the wife personally arising out of her involvement in the fund past, present or future including but not limited to:

(i)any and all liability for payment of tax to the Deputy Commissioner of Taxation past, present or future, howsoever arising, including but not limited to capital gains tax and any fine penalty or other costs in relation to any alleged non-compliance by the fund;

(ii)any and all liability of the wife for individual income tax in respect of the fund past, present or future and howsoever arising including but not limited to capital gains tax, any fine, penalty or other costs;

(iii)any and all creditors of the fund;

(iv)any and all borrowings of the fund;

(v)arising from her resignation as trustee or member.

(18)On or before 9 March 2012 the husband shall provide to the wife all documents required to be signed by the wife in order to carry out the terms of the within orders (including but not limited to resignation of directors, share transfers and notice to superannuation fund trustees).

1. Provided that if the husband pays the sum of FOUR HUNDRED AND FOURTEEN THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS [$414,750.00] into an interest bearing account in the name of the wife and husband at the Westpac Banking Corporation and provide to the wife documentary proof of such payment then the wife shall comply with paragraph 15 of the Order of 3 August 2010 and the interest to accumulate until agreed in writing by the parties or otherwise as ordered by the Court.

1. The husband to inform the wife in writing by 21 March 2012 whether he has been able to arrange the finance and his proposed settlement date.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The wife is restrained and an injunction is granted restraining her from dealing with or approaching any bank to which the husband makes an application for finance in his own right or on behalf of any entity of which the wife is a shareholder or director.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

Ms Tritton

Applicant

And

Mr Poyzer

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am being asked to make an order for costs in relation to the Application in a Case filed by the wife in this Court on 22 December 2011.  In that Application in a Case the wife sought orders to restrain the husband from dealing with any real property without leave of the Court or discharging the order for stay.  The matter was supported by an affidavit of the wife referring to one of the properties which had been the subject of the orders that I made in August 2010 (the P property) being up for sale.

2. The response to the Application in a Case was filed on 16 January 2012 together with an affidavit of the husband responding to the affidavit of the wife and seeking further orders which have been the subject of orders I have made today.  The Notice of Discontinuance was filed by the wife on 6 February 2012 discontinuing all of the Application in a Case. 

3. The matter has come on before me this morning in relation to the question of costs of the Application in a Case and in relation to the orders sought by the husband in his Response.

4. The Application in a Case and the orders sought in the Response need to be seen in the full context of this matter.  Litigation in relation to property settlement proceedings have been outstanding between the parties for years.  Specifically I made final orders by way of property settlement on 3 August 2010 (which I am told are still the subject of an appeal). 

5. The orders which are the subject of the appeal came on before me and were dealt with by way of orders subsequently in relation to orders for costs and orders in relation to stays. 

6. As I indicated, the orders for final property settlement were made on 3 August 2010.  Both the Application in a Case and the Response to that application were brought about in circumstances where, because of the appeal, compliance with the orders that I made for the transfer of assets and interests in various entities and the payment of sums of money.

7. The order that the wife sought in the Application in a Case relates to the P property.  One of the orders that exists in the orders for final property settlement provided that if the husband did not within a certain time comply with the orders providing for the payment of money, then the option existed for the husband to transfer the P property freehold and unencumbered to the wife with an alteration of the amounts to be thereafter paid by the husband.

8. Paragraph 14 of the order of 3 August 2010 was also a default order providing that if the husband had not by 1 October 2010 paid the amount due or transferred the property to the wife, then the husband was to sign documents to bring about the sale of the P property for the best price possible in order that the payments could be made to the wife. 

9. I am therefore not satisfied that in the circumstances of this particular case that an order for costs against the wife for bringing the Application in a Case and then discontinuing once the husband had filed his Response and affidavit would necessarily be just and equitable in all the circumstances in accordance with section 117 of the Family Law Act1975 (Cth) (“the Act”). Those conditions set out include various matters, including whether a party has been wholly successful or not. They are factors which need to be taken into account, but the Act also provides for the Court to consider any other circumstances that are appropriate. This matter, the circumstances of the long outstanding appeal, the types of orders that were made by way of final orders in early August 2010, the ongoing directions made since then by way of stay and attempts by the husband to sell the property whilst the appeal is pending are all factors which I take into account. I therefore make no order for costs either in relation to the Application in a Case or the Response.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 February 2012.

Associate: 

Date: 5 March 2012