Trustees Of the Bankrupt Estate Of Sresbodan and Sresbodan
[2017] FamCA 268
•27 April 2017
FAMILY COURT OF AUSTRALIA
| TRUSTEES OF THE BANKRUPT ESTATE | [2017] FamCA 268 |
| OF SRESBODAN & Sresbodan |
FAMILY LAW – PROPERTY SETTLEMENT – Interest on unpaid money – Where the trustees in bankruptcy seek an order for the payment of interest on three sums payable to them by the husband – Whether the orders for the payment of the sums have been made in proceedings under the Family Law Act 1975 (Cth) (“the Act”) and whether s 117B therefore applies – Where the orders for payment have been made in favour of a creditor of the husband and out of the husband’s share of funds held in a controlled monies account – Where the orders for payment are orders made in proceedings under the Act – Whether the discretion conferred by s 117B of the Act should be exercised in circumstances where the trustees will already receive interest on their share of the funds in the controlled monies account, albeit at ordinary bank rates rather than the rates prescribed in r 17.03 of the Family Law Rules 2004 (Cth) – Where it is not appropriate to make an order that the trustees receive interest at that rates prescribed in r 17.03 – Application dismissed.
Bankruptcy Act 1966 (Cth) ss 58, 116 Conveyancing Act 1919 (NSW) s 37A Family Law Act 1975 (Cth) ss 4, 78, 79, 80, 90AE, 117, 117B
Federal Court Act 1976 (Cth) s 52
Family Law Rules 2004 (Cth) r 17.03
Federal Court Rules 2011 (Cth) r 39.06
CSL Australia Pty Limited v Formosa (2009) 235 FLR 273
Eberstaller v Poulos (2014) 87 NSWLR 394
Ebner & Pappas (2014) FLC 93-618
Sresbodan & Sresbodan and Ors [2015] FamCA 515
Sresbodan & Sresbodan and Ors [2016] FamCAFC 88
APPLICANTS: | Mr Vanin and Mr Cox as Trustees of the Bankrupt Estate of Mr Sresbodan |
| RESPONDENT: | Mr Sresbodan |
| FILE NUMBER: | SYF | 4345 | of | 2006 |
| DATE DELIVERED: | 27 April 2017 | |||
| PLACE DELIVERED: | Sydney | |||
| PLACE HEARD: | Sydney | |||
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 20 December 2016 and by way of written submissions received from the Trustees on 27 February 2017 and Mr Sresbodan on 20 March 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | Goldrick Farrell & Mullan |
| THE RESPONDENT: | In person |
Orders
| (1) | The Application in a Case filed on 29 September 2016 is dismissed. |
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 Trustees of the Bankrupt Estate of Mr Sresbodan & Sresbodan 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 Sydney
FILE NUMBER: SYF 4345 of 2006
Mr Vanin and Mr Cox as Trustees of the Bankrupt Estate of Mr Sresbodan
Applicants
And
Mr Sresbodan
Respondent
REASONS FOR JUDGMENT
Introduction
1. By an Application in a Case filed on 29 September 2016, Mr Vanin and Mr Cox as Trustees of the Bankrupt Estate of Mr Sresbodan (“the trustees”) seek an order for the payment of $50 095.67 from Mr Sresbodan (“the husband”). They claim this sum pursuant to s 117B of the Family Law Act 1975 (Cth) (“the Family Law Act”) as interest on sums that were ordered to be paid to them by Mr Sresbodan on 6 July 2015 but which were not finally paid until 27 September 2016.
2. The orders were made in proceedings that originally commenced as property proceedings between Ms Sresbodan (“the wife”) and the husband. The proceedings were greatly complicated by the bankruptcy of the husband on 12 May 2009, as a consequence of which the trustees became parties to the proceedings. Two firms of lawyers were also parties to the proceedings, seeking payments of legal fees from the husband.
3. The husband and the wife had one asset of significance, N Street, Suburb K (“the Suburb K property”). That property was sold and part of the net proceeds were distributed by a payment of $1 858 396.16 to the trustees in bankruptcy on 1 November 2010. The balance of $5 041 398.43 was placed in a controlled monies account (“CMA”).
4. The proceedings before me concerned the entitlements of the various parties to the funds in the CMA and what should be the appropriate distribution of the property of the husband and the wife.
5. I shall not set out the full history of this matter and regard should be had to the reasons for judgment given on 6 July 2015 (Sresbodan & Sresbodan and Ors [2015] FamCA 515).
6. On that day I made the following order:
(1) After 28 days from the date of judgment or maturity of the term deposit, whichever occurs later, the funds held in the controlled monies account holding the proceeds of sale of [N Street, Suburb K] be distributed as follows:
(a) $433 041 to [Mr Vanin] and [Mr Cox] as trustees of the bankrupt estate of [Mr Sresbodan]. (b) $2 023 311 to [Ms Sresbodan]. (c) $955 522 to the account of [Mr Sresbodan] and distributed as follows: (i) $61 279.02 to [Mr D]t and [Mr E] trading as [D Attorneys];
(ii) $148 078.57 to [Mr Vanin] and [Mr Cox] as trustees of the bankrupt estate of [Mr Sresbodan];
(iii) Subject to further order of this Court and pending determination of the proceedings between [R Lawyers] and [Mr Sresbodan], $93 786.81 to [R Lawyers] to be held by them subject to the orders of Watts J made on 4 April 2011;
(iv) $1984 to [Ms Sresbodan];
(v) $1984 to [Mr Vanin] and [Mr Cox] as trustees of the bankrupt estate of [Mr Sresbodan];
(vi) $1984 to [D Attorneys]; and
(vii) $646 425.60 to [Mr Sresbodan].
(d)
Any balance then remaining in the account is to be distributed by paying:
(i) 60.8 per cent to [Ms Sresbodan]; (ii)
28.5 per cent to [Mr Vanin] and [Mr Cox] as trustees of the bankrupt estate of [Mr Sresbodan]; and
(iii) 10.7 per cent to [Mr Sresbodan].
7. The trustees assert that they are entitled to be paid interest for the following three sums payable to them by the husband:
• $433 041.00 (referred to in Order 1(a) of the Orders of 6 July 2015); • $148 078.57 (referred to in Order 1(c)(ii) of the Orders of 6 July 2015); and • $1984.00 (referred to in Order 1(c)(v) of the Orders of 6 July 2015). 8. The structure of Order 1 of the 6 July 2015 Orders is important. The sum of $433 041 payable to the trustees is made up as follows:
$34 481.98 Reimbursement by all parties having an interest in the fund for arrears paid to the mortgagee by the trustees, valuation fees, marketing costs and GST advice.
$70 747.50
Clean up costs, interim payment to the husband, costs and compliance with orders of Watts J, and trustees’ compliance fees.
$282 138.84 The balance of the property of the husband that had vested
in the trustees but had not yet been paid to them.
$82 451.00 The trustees’ share of interest at the time of the orders.
9. Those orders reflect the steps taken in the husband’s bankruptcy. Upon the making of the sequestration order against the husband, his interest in the Suburb K property vested in the trustees. The co-owner of the property was the wife. There were difficulties settling the property and, ultimately, the trustees in bankruptcy were appointed as trustees for sale. As such they incurred expenses in preparing the property for sale, which included removing the husband from it. The sums of $34 481.98 and $70 747.50 reflect the costs associated with the sale but in the capacities of both trustees for sale and in bankruptcy. I considered that the costs associated with the sale should be borne by all parties with an interest in the proceeds of sale and not just by the bankrupt estate.
10. After the sale, the trustees in bankruptcy obtained an order for an interim distribution of funds to them. This was less than the 50 per cent interest in the property that had vested in them, but it was thought at the time – wrongly, as it turned out – that this distribution would be sufficient to pay all of the creditors of the bankruptcy in full, leading to the early conclusion of the bankruptcy.
11. The husband was not happy with this course and objected to the trustees receiving any funds from the proceeds of sale of the Suburb K property. He asserted that the property had been acquired with the proceeds of an action for personal injury, and thus did not vest in the trustees (see s 116(3) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”)).
12. In December 2012 Emmett J accepted the husband’s assertions in part and determined that of the husband’s share of the Suburb K property, 34.95 per cent vested in the trustees in bankruptcy but that the husband was entitled to retain 15.05 per cent. Thus the court started with the position that the wife owned 50 per cent of the proceeds of the Suburb K property, the trustees 34.95 per cent and the husband 15.05 per cent.
13. Thus the sum of $433 041 represents the sum the trustees were entitled to be paid out of the CMA. Order 1(d)(ii) provided that after all of the above payments were made, any balance of the account was to be paid as to 28.5 per cent to the trustees. As interest would continue to accrue on the account, this would include 28.5 per cent of the interest accrued on the funds in the CMA until the time it was distributed.
14. The sums of $148 078.57 and $1984 are quite different. They are payable from the husband’s share of the CMA and represent liabilities owed by him to the trustees.
15. The sum of $148 078.57, which I ordered to be paid to the trustees from the husband’s share of the CMA, arose from eight costs orders made against the husband in favour of the trustees between 18 December 2014 and 7 April 2015.
16. The sum of $1984 relates to a costs order made in favour of the trustees against the husband on 26 March 2015.
17. As can be seen, the payments ordered to be made to the trustees from the husband’s share have a different characterisation and this will become significant, as I will explain in due course.
18. On 27 November 2015 I varied a stay of orders for payment out of the CMA, including the orders for payment of the above three sums to the trustees, pending determination of an appeal by the husband. As a condition of that stay, a part payment of the amounts owing to the trustees in the sum of $50 000 was made. The balance of the amounts was paid to the trustees on 27 September 2016.
19. Thus the trustees claim interest on the total of the above three sums from 6 July 2015 to 27 September 2016, taking into account the receipt of $50 000 on 14 December 2015.
20. Section 117B of the Family Law Act provides:
(1)
Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a) the date on which the order is made; or (b) the date on which the order takes effect; whichever is later, on so much of the money as is from time to time
unpaid.(2)
A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first-mentioned order or may order:
(a)
that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b)
that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
(Emphasis added)
21. It is important to note that s 117B only applies where an order for payment of money has been made “in proceedings under this Act”.
22. It is therefore necessary first to determine whether any of the orders for the payment of money in respect of which the trustees’ claim for interest is made were, in fact, orders made in proceedings under the Family Law Act. In CSL Australia Pty Limited v Formosa (2009) 235 FLR 273 the Court of Appeal said at [22] (original emphasis):
…a fundamental question necessary to be considered in every case: the identification of the character of the jurisdiction being exercised by the court – whether State or federal. The importance of this early enquiry, in every case, is that the answer to it may affect the law applicable to the controversy.
23. In Eberstaller v Poulos (2014) 87 NSWLR 394 the Court of Appeal dismissed an appeal on the basis that it lacked jurisdiction to hear it. Although the primary judge made orders relying upon s 37A of the Conveyancing Act 1919 (NSW), the court was of the view that the proceedings, nonetheless, were proceedings arising under the Family Law Act. The court said:
2. …The substance of the proceedings before the primary judge was the enforcement of consent orders made in the Family Court of Australia. Those orders resolved the dispute arising under the Family Law Act 1975 (Cth) between husband and wife as to the matrimonial property. Proceedings to enforce such a settlement comprise a matter arising under federal law. It follows that the appeal to this Court was filed contrary to the statutory command in s 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act, and should be dismissed.
24. In the appeal which was subsequently heard by the Full Court of the Family Court of Australia (Ebner & Pappas (2014) FLC 93-618), that Court had to determine whether the primary judge’s costs order was made under the Family Law Act. This is because s 117, like s 117B, contains the words “proceedings under this Act”. After conducting an extensive survey of authority, the Court concluded:
120. Although the Court of Appeal found that the subject matter of the present case is a matter arising under the Family Law Act the proceedings themselves are not “proceedings under the Act”. The proceedings did not invoke any provision of the Family Law Act. The proceedings were not authorised by a provision of that Act. Rather, the proceedings were taken under, and authorised by, s 37A of the Conveyancing Act.
121. Thus, s 117 had no application to the proceedings.
122. There is no conflict between that finding and the finding of the Court of Appeal that “the whole of the subject matter of the appeal is a matter arising under the Family Law Act”. In doing so, the Court of Appeal found that the proceedings were an enforcement of a compromise of rights arising under the Family Law Act. It was not suggested that Act authorised the proceedings.
123. As is made clear in the above authorities, there is a distinction between a proceeding under an act and a matter arising under an act.
25. The parties had not addressed this issue at the hearing. Accordingly they were invited to provide written submissions on the issue. Submissions were received from the trustees on 27 February 2017 and from the husband on 20 March 2017.
26. It may be accepted that the proceedings arose under the Family Law Act because their genesis was an application by the wife under s 79 for the division between the wife and the husband of their property. In order to make that division it was first necessary to decide what property was held by the husband and the wife. In doing so it was necessary to determine the claim by the trustees against the CMA in their capacity as trustees in bankruptcy and in their capacity as trustees for sale. That in turn meant that the Court was obliged to identify the legal and equitable interests held by the trustees in the CMA.
27. That, however, merely states the problem and does not answer it, because the trustees’ legal and equitable interests arose from a number of different sources.
28. For example, the vesting of the husband’s property in his trustees in bankruptcy occurs by the operation of s 58 of the Bankruptcy Act. All the court did in relation to the sum of $282 138.84 referred to earlier was to identify that sum as the remaining property of the husband that had vested but had not yet been paid.
29. However, the order for payment could be categorised as authorised by s 80(1) (f) or (k) of the Family Law Act in the course of s 79 proceedings or as an order pursuant to general legal and equitable principles being exercised in the accrued jurisdiction of the Court.
30. Section 4 of the Family Law Act provides a number of definitions of “matrimonial cause”. Definitions (caa) and (cb) provide:
matrimonial cause means:
(caa) proceedings between:
(i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to the maintenance of the first-mentioned party; or … (cb) proceedings between:
(i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to any vested bankruptcy property in relation to the
bankrupt party, being proceedings:
(iii) arising out of the marital relationship; or (iv)
in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or
(v)
in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; …
31. It is useful to recall that the orders appointing the trustees for sale were made by this court in these proceedings.
32. The funds in the CMA were found to be owned by the wife, the husband and the trustees in bankruptcy. In other words, the CMA consisted only of property of parties to the marriage and the vested bankruptcy property of the husband. The proceedings, at least as between the wife, husband, and the trustees, constituted a matrimonial cause. Pursuant to s 79 the Court could have altered the interests of any or all of the wife, husband or trustees in that property.
33. Thus, whilst the position is not entirely clear I am inclined to the view that the proceedings, insofar as they relate to the sum of $433 041, should be characterised as proceedings under s 79 of the Family Law Act. The orders in favour of the trustees could also be characterised as orders under s 78 of the Family Law Act, although the parties did not approach the proceedings that way.
34. Turning to the sum of $148 078.57 payable from the husband’s share of the CMA, as I have said, that sum arises from costs orders made by the Family Court of Australia, the Supreme Court of New South Wales and the Federal Court of Australia. The orders for costs made by the Supreme Court or the Federal Court could not be described as being made in proceedings under the Family Law Act. The obligation to pay interest arises from the operation of s 52 of the Federal Court of Australia Act 1976 (Cth) and r 39.06 of the Federal Court Rules 2011 (Cth).
35. The order for the payment of $148 078.57 from the husband’s share of the CMA was made by this court in the course of the s 79 proceedings. The trustees of the bankrupt estate of a party to a marriage or creditors of a party who may not be able to recover his or her debt if the order proposed in the proceedings were made or any other person affected are entitled to become parties to proceedings under s 79 (see s 79(10) and (11)).
36. The obvious purpose of those subsections is to permit a creditor, a trustee in bankruptcy or an interested person to protect their interests, presumably by seeking payment of whatever is owed to them from the property of the parties to the marriage, preservation of sufficient property of the parties of the marriage so as to enable them to recover their debt or by allowing them to seek other appropriate orders for their benefit. The trustees’ entitlements to be paid interest on their outstanding orders for the payment of costs are not vested property of the bankrupt husband. They are obligations that have been imposed on the husband in favour of the trustees.
37. Thus, in this respect the trustees appeared as creditors seeking payment of debts owed to them out of funds owned by the husband. Such orders may be made in s 79 proceedings.
38. Again, I conclude that the better view is that the orders I made for the payment of the outstanding costs, which orders were made by the Supreme Court of New South Wales and Federal Court of Australia, were made in proceedings under the Family Law Act.
39. The orders for the payment of costs orders imposed under the Family Law Act by this Court are clearly orders made in proceedings under that Act.
40. As I have already indicated, the CMA was an interest bearing account. I found that the trustees were entitled to 28.5 per cent of any balance at the time the payments were actually made from the account. This accounts for the payment of interest on the trustees that had accrued up to the time of delivery of reasons but which had not been taken into account, as well as interest accruing between the time the orders were made and the actual payment of funds.
41. Thus, the effect of the orders is that the trustees have received, as part of the orders, interest on all of the sums to which they were entitled under the orders. Of course, that interest was paid at ordinary bank rates. The trustees seek interest under r 17.03 of the Family Law Rules 2004 (Cth) which prescribes that the rate of interest that applies for the purpose of s 117B is six per cent above the cash rate published by the Reserve Bank of Australia for the periods as set out in the rule.
42. The order sought by the trustees proposes that they receive interest under r 17.03 but without taking into account the interest already received. That, to my mind, would clearly be inequitable and unfair.
43. The trustees did not accept that this was the case but did submit that the court could, if it saw fit, make an order for the difference between the interest payable under r 17.03 and the interest actually received.
44. The question that must be answered first is whether there should be an order for the payment of interest at all.
45. The trustees submitted:
34. Order 1(d) was in the manner in which the Court dealt with interest which accrued from judgment and up to the date that payment was to be made. That order addressed the manner in which the small amount of interest on the fund accruing between the date of judgment and date of payment was to be apportioned at the date that payment was due.
35. The amount in Order 1(d) does not carry with it an interest component on the sum of $583,103.57 (less the part payment of $50,000.00 ordered on 14 December 2015) which would compensate the Trustees for lack of access to the fruits of their judgment from the date that payment was due.
36. It does not reflect the amount that is lost to the Trustees by virtue of them not receiving the payments due under the Orders requiring payment of specified sums.
46. I do not agree that Order 1(d) does not carry an interest component that would compensate the trustees for the requisite payment being made. The order provides for the trustees to receive 28.5 per cent of the balance held in the account at the time of payment. As the judgment of July 2015 explained, the trustees were entitled to 28.5 per cent of the principal in the account, as best as could be ascertained. The reference to the interest that would accrue was intended to be, and can only have been, a reference to the interest that would accrue on the trustees’ share of the account between the date of the order and the date of payment. Thus, the trustees have already received interest on their share of the CMA at the bank rates that applied to that account. The question is whether that interest should be regarded as sufficient to compensate the trustees for being out of their funds or whether the trustees should receive the very much higher interest provided by r 17.03. The Court clearly has a discretion to order that there be no interest paid or that interest be paid at other than the prescribed rate (s 117B(2)).
47. I should add here that Order 1(d) is, in substance if not in form, an order under s 117B(2), as it clearly provides for interest to be payable, but at ordinary bank rates. I did not, however, hear any submissions as to the form of that order at that time, and therefore would not preclude the present application from succeeding on that basis.
48. As best as can be estimated by the trustees, the present shortfall in the bankrupt estate is $24 000 to $25 000. In the event that this deficit is overcome and creditors are paid a dividend of 100 cents in the dollar for their proven debts, the creditors will then be entitled to claim interest upon those debts in the event that there are funds available to pay that interest. The trustees estimate that interest to be of the order of $400 000.
49. In short, the creditors have received nearly 100 cents in the dollar on their proven debts excluding interest.
50. On the other hand, the financial position of the husband is not good. In previous judgments I have described it as dire. Whilst I have no recent information as to his living circumstances, I have no reason to suspect that he is doing anything other than continue to live in his van in a carpark somewhere. He received over $80 000 pursuant to the orders of 20 September 2016. I do not know what has happened to that sum but the husband says that he has spent it all. He tells me that he has been consulting a barrister in Melbourne. It is clear that he is getting legal assistance because his affidavits and submissions are in a different form than usual. The husband’s written English is very poor and the affidavits and submissions he has prepared himself are short and poorly typed. This is no longer the case. Particularly telling is the use of Latin phrases and sentences in the more recent documents. One could, on this material, infer that he has spent the money on lawyers.
51. Be that as it may, the husband is entitled to use his funds as he sees fit. Presently, however, approximately $500 000 of his funds is held pursuant to freezing orders made on 20 September 2016. It is clear from earlier judgments in this matter that the husband has creditors whose claims will come close to exceeding that sum. He has foreshadowed an application for further funds to be released to him for living and legal expenses.
52. Taking into account that the trustees have already received interest at bank rates on the sums ordered to be paid to them, that the creditors of the husband’s bankrupt estate have already received close to 100 cents in the dollar on their debts and the poor financial position of the husband, I am of the opinion that the interest already received by the trustees is sufficient compensation for the trustees being out of their funds pending the determination of the appeal.
53. The application for the payment of interest will thus be dismissed. In that circumstance it is not necessary to make a further order under s 117B(2). However, if it was I would make an order limiting the interest to be received by the trustees to that provided for by Order 1(d) made on 6 July 2015.
54. I have not referred to the husband’s submissions. I have to say that I found them to be of little assistance.
55. The husband opposed the making of the orders, again asserting that he is not and has not been a bankrupt. I have discussed this most recently in Sresbodan & Sresbodan and Ors [2016] FamCA 954 where I said:
20. The conduct of the proceedings is a relevant matter. As explained in
the reasons for judgment, the husband’s bankruptcy flowed from costs orders made against him in the Land and Environment Court in 2005. He eventually paid the costs, but only after a sequestration order was made against him. His subsequent application to annul the bankruptcy did not succeed.
21. The husband asserts that because the proceedings had been
dismissed, the costs order could not have been made and was, therefore, a nullity. It follows, he asserts, that the failure to pay these costs could not be relied on to found the sequestration order, that it too was a nullity and that he is not now, and never has been, a bankrupt.
22. Whilst it is true that the proceedings taken against the husband by
the Suburb F Shire Council were dismissed for want of prosecution in 2005, it is also clear that they were subsequently re-instated. This is so, despite the fact that the re instatement was never the subject of a formal order. The husband participated in the re-instated proceedings. All this was made clear by Foster J in his reasons for dismissing the husband’s annulment application. His Honour recorded that the Land and Environment Court had dismissed the husband’s application to set the costs order aside.
23. In 2013 Yates J dismissed an application by the husband for leave to
appeal from the decision of Foster J.
24. The husband continues to assert that the costs order was improperly
made by the Land and Environment Court because the proceedings had been
dismissed.25. The husband raised that issue unsuccessfully and on three separate
occasions in the New South Wales Court of Appeal.
56. The same submissions were rejected by the Full Court in Sresbodan & Sresbodan and Ors [2016] FamCAFC 88. The present submissions must also be rejected.
57. The husband further submitted that I should delay making an order of the kind sought by the trustees because he has an application pending in the Land and Environment Court of New South Wales, which will resolve the status of the trustees. I do not know the exact nature of the proceedings before the Land and Environment Court because no evidence was given about it and no documents filed in that court were tendered. However I assume from what the husband told me from the bar table that it concerns the issue of whether or not the Land and Environment Court proceedings were reinstated. The husband asserted that he has new evidence, namely that a registrar of that court has informed him that a search of the court’s files has found no formal order of reinstatement and no reasons for reinstating the proceedings. I do not regard that as new evidence. All of the decisions to which I have referred above proceeded on the basis that there was no formal order of reinstatement but that it must be inferred that the proceedings had been reinstated. This is because after the time of the order dismissing the proceedings, the proceedings recommenced and continued with the active participation of the husband.
58. The evidence is therefore not new. In any event the various orders made by this court, the Federal Court and the Supreme Court would remain on foot regardless of any outcome in the Land and Environment Court because they are orders of superior courts of record. Finally, the husband’s written submissions were critical of the form and phraseology of the trustees’ submissions. Again, that was of limited assistance.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 April 2017.
Associate
Date: 27 April 2017