Wiggins and Wiggins
[2011] FMCAfam 553
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WIGGINS & WIGGINS | [2011] FMCAfam 553 |
| FAMILY LAW – Property – history of repeated non compliance with orders and directions – parties agree the matter not ready to proceed – no valuations done in accordance with directions – trial vacated. |
| Family Law Act 1975 (Cth) |
| Applicant: | MR WIGGINS |
| Respondent: | MS WIGGINS |
| File Number: | DGC 4031 of 2009 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 6 May 2011 |
| Date of Last Submission: | 6 May 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Babic |
| Solicitors for the Applicant: | Wollerman Shacklock |
| Counsel for the Respondent: | Ms S. Khan |
| Solicitors for the Respondent: | Legoll Legal Practitioners |
ORDERS
The final hearing fixed for 22 June 2011 be vacated.
The properties listed in Annexure A situated in Bali be sold forthwith and the net sale proceeds to be transferred to Australia and held in a trust account or joint bank account, not to be released unless both parties consent in writing or pursuant to a court order.
The business, [P.Morgan] listed in “Annexure A” be sold forthwith and the net sale proceeds to be transferred to Australia and held in a trust account or joint bank account, as per same condition in paragraph 2.
The nominee, [name omitted] supervise the sales and provide to the parties a list of Real Estate and business agents, for the parties to make enquiries about appointing same to handle the sales.
The respondent forthwith provide a withdrawal of caveat which she has lodged over Property W, Australia (the “Property W property”).
The applicant do all such acts and things and sign all such documents as may be required to sell the Property W property and that for the sale proceeds there shall be paid:
(a)Real Etate Agents commission and conveyancing costs;
(b)The amounts necessary to discharge the National Australia Bank mortgage secured over the Property W property; and
(c)The balance to be held in trust or joint bank account on same condition in paragraph 2.
The respondent file and serve any Affidavits and further materials regarding the ownership of the [Morgan] business in [K] within 14 days, including all documentation establishing the ownership of the business, business name and any contract, arrangement or understanding in relation to same with [P.Morgan].
The applicant file and serve any Affidavit in reply within 28 days.
The matter be adjourned for a Mention on 22 June 2011 commencing at 10.00 am at the Federal Magistrates Court of Australia at Dandenong to determine whether the [Morgan] business in [K] should be included in the Real Estate Bali list at Annexure A to these orders and sold in accordance with order 3 herein.
The respondent’s solicitor pay the applicant’s costs reserved on
21 April 2010 within 7 days.
AND THE COURT NOTES THAT:
The orders were by consent.
The parties had not complied with the order and directions of
22 December 2010.
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
“ANNEXURE A”
Real Estate – Bali
(a)Property J, Bali
(b)Property L – Bali
(c)Property P – Bali
Business – Bali
(a)[P.Morgan] business (ie at [L] and [R]).
IT IS NOTED that publication of this judgment under the pseudonym Wiggins & Wiggins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
DGC 4031 of 2009
| MR WIGGINS |
Applicant
And
| MS WIGGINS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court this afternoon are proceedings between Mr Wiggins and Ms Wiggins. The proceedings were commenced by application filed by Mr Wiggins on 30 November 2009.
Application
The application sought the following orders:
“1.That the Applicant Husband retain all his right title and interest in the property known as Property W, Victoria.
2.That the Respondent Wife forthwith remove the Caveat lodged on the abovementioned property on 16 October 2009.
3.That the Respondent Wife transfer to the Applicant Husband all her right title and interest in the property known as Property L situated in Bali, Indonesia.
4.That the Respondent Wife pay to the Applicant Husband the sum of $10,000.00 (US) being her half share of the amount owed for the construction of the kitchen in the [L] property.
5.That the Respondent wife pay to the Applicant Husband the sum of Rp110,000,000.00 being the monies invested by the Applicant Husband in the [K] business.
6.That the Respondent Wife retain all her right title and interest in the property known as the Property J situated in Bali, Indonesia.
7.That the Applicant Husband transfer to the Respondent Wife all his right title and interest in the business known as [Morgan] situated and operated in both [L] and [R] in Bali, Indonesia.
8.That the Respondent Wife pay to the Applicant Husband the sum of $150,000.00 (US) in consideration for the Applicant Husband transferring to the Respondent Wife all his right title and interest in the business situated and operated in both [L] and [R] in Bali, Indonesia.
9.The wife retains for her own personal use the Honda Jazz motor car.”
Background
Mr Wiggins (“the applicant”) is around about 60 years of age. The respondent, Ms Wiggins, (“the respondent”) is around about 58 years of age.
There is some dispute as to the date that the parties commenced their relationship however it appears not to be in dispute that they married [in] 2002. It also appears that it is agreed the parties separated in August 2009 and were divorced in 2010. There are no children of the parties’ relationship, however parties have children from previous relationships.
Previous court orders
The application had a first return date before the Court on
21 December 2009. On that occasion orders were made that provided:
“UNTIL FURTHER ORDER
1.The husband and wife be and are hereby restrained by injunction from disposing of or charging the ownership of the following matrimonial assets:
(a)The real property situate at Property W in the State of Victoria, Australia;
(b)The real property [J], Bali, Indonesia;
(c)The real property situate at [U], [L], Bali, Indonesia;
(d)The parties business registered at the address of [omitted], [L], Bali Indonesia currently trading as “[Morgan].”
(e)Time share interest of premises situated at Property Q, Queensland, Australia; and
(f)The real property at Property P.
2.The husband and wife be and are hereby restrained from further encumbering the matrimonial assets listed in paragraph 1 hereof expect as provided pursuant to Court Orders or written agreement between the parties or in the ordinary course of business.
3.The wife file and serve a Response, Affidavit and Financial Statement by 22 January 2010.
4.The wife file a Notice of Address for Service by 4pm on
21 December 2009.”
The matter returned to Court on 9 March 2010, this time before Phipps FM and the following orders were made:
“THE COURT ORDERS:
1.THAT the matter be adjourned to the Duty List on 27 April 2010 at 9.30am in the Federal Magistrates Court of Australia at Dandenong before Federal Magistrate Baumann.
2.THAT in addition to the documents described in the minutes or orders each party provide to the other party copies of document in the party’s possession relating to the purchase and sale of Property G and [1] Property B and [2] Property B.
3.THAT any application in the case by the husband to restrain the wife from prosecuting property proceedings in the Court of Indonesia be filed and served by 9 April 2010.
…
BY CONSENT
1.Within 14 days of the dates of these Orders, the Husband provide to the Wife copies of the following documents:-
a)Bank Statements for [omitted] bank account for the period 22 June 2007 to date.
b)Bank Statements for the National Australia account no. [omitted] for the period 22 June 2007 to date.
c)All documents within his possession and/or control relating to his interest in shares.
d)All documents within his possession and/or control relating to the cashing in of his Superannuation interest(s).
e)Current Statement relating to the National Australia Bank Mortgage over the property situate at Property W.
f)Document(s) relating to the value of the timeshare at Property S Queensland.
2.Within 30 days of the date of these Orders, the Wife to provide to the solicitor for the Husband copies of the following documents:
a)Statements for [omitted] bank account number [omitted] from date (including financial statement, if relevant).
b)Statements for Bank [omitted] account number [omitted] from date of opening to date (including financial statements, if relevant).
c)Statements for Bank [omitted] account number [omitted] from date of opening to date.
d)Statements for [omitted] Bank Account from opening to date.
e)Copies of statements for any other bank at which the wife has had or has an account, including but not limited to foreign banks, for the period of 22 June 2007 to date.
f)All documents relating to the formation of the company known as [P.Morgan].
g)All document s relating to the transfer of license from [C.Morgan] to [P.Morgan] for the business known as [Morgan].
h)Daily book keeping records for the business known as [Morgan] for the period of 22 June 2007 to date, excluding the period 31 December 2009 to 10 February 2010.
i)Copies of any documents relating to a lease arrangement between the Wife and Ms D.
j)Copies of any documents relating to a lease arrangement between the Wife and Mr E.
k)Copies of documents evidencing payments received from the business known as [G].
l)Documents relating to the sale of the Honda Jazz motor vehicle registration [omitted].
…”
On or around 20 April 2010 a notice of address for service was filed by solicitors on behalf of the respondent.
On 27 April 2010 there was an application in a case filed by the applicant which amongst other things sought an anti-suit injunction. The matter came before Baumann FM on 27 April 2010 and the following orders were made:
“THE COURT ORDERS THAT:
1.The matter be adjourned to 21 June 2010 at 10.00 a.m. in the duty list at the Federal Magistrates Court of Australia at Dandenong.
2.The Respondent wife make, file and serve a response and affidavit to the Application in a Case file don 27 April 2010 within 14 days.
AND THE COURT NOTES:
A.The parties hope to have the Application dealt with as a discrete issue the adjourned date.”
On 16 June 2010 there was a response filed by the respondent. The orders sought were:
“1.That a share of the property situated at Property W be granted to the wife in recognition of her contribution to the household, improvements for the past 12 years.
2.That the caveat not be lifted until the said property has been disposed of or transferred according to the judgment of this court.
3.That the settlement for all the properties and businesses in Bali, Indonesia be dealt in the court of Bali, at the time of the hearing for the divorce and settlement. This matter has already been filed with the courts in Bali.
4.That the husband returns to the wife all the monies received as refunds for the wife from the Australian Taxation Department for the last 12 years, which he deposited in his personal account.
5.That the husband returns to the wife her share of the rent in the Property W property, (approximately AUD 2,500 monthly), which the husband has been receiving into his personal account for at least the last 3 years.”
The matter returned to Court before the Court as currently constituted on 21 June 2010 and the Court made the following Orders:
“THE COURT ORDERS THAT:
1.The matter be adjourned to 15 November 2010 at 10.00 a.m. in the duty list at the Federal Magistrates Court of Australia at Dandenong.
2.The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Dandenong Registry on 6 September 2010 at 2.15 pm.
3.The parties ensure that no later than seven days prior to the date fixed for the conciliation conference, each party send to the other, and the nominated Registrar or organisation:
(a) an outline of case document in the form set out below in the trial directions;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute;
(c) valuations of any superannuation interests
(d)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(e)written confirmation by each party or their solicitor that:
(i) all relevant documents have been exchanged between the parties; and
(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
4. Costs reserved.
AND THE COURT NOTES:
A.The parties are returning before the Court on 15 November 2010 and continue to be represented as at today’s date.”
On that occasion and on the basis of discussions between the parties the applicant abandoned the application in a case filed on 27 April 2011. There were orders made which, amongst other things, fixed the matter for a conciliation conference and adjourned the matter for a mention on 15 November 2010.
On 18 August 2010 the applicant filed a contravention application which was given a first return date of 6 October 2010. The parties attended a conciliation conference on 6 September 2010. The Court file indicates that the conciliation conference was not productive due to, amongst other reasons, non-compliance with the Court orders of
21 June 2010.The matter returned to Court, again before the Court as currently constituted, on 6 October 2010 to deal with, amongst other things, the applicant’s contravention application filed on 18 August 2010. Orders were made on that day, which provided:
“THE COURT ORDERS THAT:
1.The Contravention Application filed 18 August 2010 be adjourned for hearing on 20 October 2010 at the Federal Magistrates Court of Australia at Melbourne commencing at 2.15 pm.
2.Both parties shall file and serve any further material upon which they seek to rely upon on the adjourned date by not later than 4.00 pm on 15 October 2010.
AND THE COURT NOTES:
A.The final application for property orders filed on
30 November 2009 remains listed for directions on
15 November 2010 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.”
Those orders listed the hearing on 20 October 2010 in Melbourne and noted that the matter was going to return, in any event, in Dandenong on 15 November 2010.
On 20 October 2010 neither party appeared before the Court as currently constituted in Melbourne and the contravention application was dismissed due to non-appearance as the orders made that day make clear. They were:
“THE COURT ORDERS THAT:
1.The Contravention Application filed on 18 August 2010 be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.”
On hearing of the orders made by the Court, as currently constituted that day in Melbourne, the applicant caused to be filed in the Dandenong Registry an application in a case which was given a return date of 15 November 2010. Another application in a case was filed on 10 November 2010 and the parties returned to Court on 15 November 2010. The Court made orders that day which provided:
“BY CONSENT THE COURT ORDERS THAT:
1.The Husband’s application for spousal maintenance be adjourned for interim hearing on 22 December 2010 at the Federal Magistrates Court of Australia at Dandenong.
2.The Wife file and serve any responding documentation (including a financial statement) upon which she seeks to rely not less than 14 days prior to the interim hearing.
3.Pursuant to Rule 16.05(2)(f) of the Federal Magistrates Court Rules 2001 (“the Rules”) the Husband’s contravention application filed on 18 August 2010 be reinstated and listed for hearing on the same date.
4.All further material to be relied upon be filed and served
14 days prior to the adjourned date.”On 7 December 2010, the applicant filed an amended application in a case. On 17 December 2010 there was some further documentation filed by the respondent.
The matter came before the Court on 22 December 2010. Both parties were represented by counsel.
There were orders made as follows which also fixed the matter for a trial on 22 June 2011.
“THE COURT ORDERS THAT
1.The applicant has leave to discontinue the amended application in a case filed 7 December 2010 and the contravention application filed 18 August 2010 be finalised on the terms set out in the attached minute.
Minutes of Consent Orders:
1.That the Husband and the Wife shall forthwith provide to the other all relevant financial details and shall continue to provide all relevant financial details including but not limited to the mortgage on the property at Property W, the rental statements for Property W, the business returns for the [business omitted] operated in Bali by the Wife; copies of current bank accounts in the names of the parties or in the name of any other person who is holding funds on behalf of one of the parties; copies of the [omitted] invoice for the Wife’s sale of furniture; copies of all invoices for the sale of furniture or chattels in Indonesia; full details of the current ownership of and control of the [business omitted] in Bali in which the Wife or her daughter have an interest; copies of all bank statements and deposit slips for the businesses in which the Wife has a financial or equitable interest and for all receipts and invoices made to and from the said businesses.
2.That the Wife be and is hereby restrained from entering into upon the property situate at and known as [U], [L], [K], Bali, Indonesia.
3.That the Wife be responsible for the reasonable maintenance and repairs of the property situate at and known as Property J, Bali, Indonesia.
…
6. That the Wife must attend in person at the final hearing.
7.That the Wife provide details of all other property and businesses in which she has a financial interest in Australia or Indonesia including but not limited to [Morgan] Business at [L] and [Morgan] Business at [R] and [Morgan] Business at [K].
8.That the Wife admits the allegations contained in contraventions 6 and 7 of the Application for Contravention filed 10 November 2010 and allegations 1-5 are withdrawn and dismissed.
9.That the Wife pay the Husband’s costs of counsel for
15 November 2010 and 22 December 2010 fixed in the amount of $2,750.
10.That the Wife pay the Husband’s costs of the application for contravention and associated Affidavits on the Federal Magistrates Court scale.
11.That he Wife pay the Husband’s costs in paragraphs 9 and 10 by 22 January 2011 via his solicitors and in the event that the costs are not paid by that date then interest shall be due and payable at the rate prescribed in the Rules.
12.That the issues or any penalty on the Contravention be dealt with at the final hearing.
13.That the Husband’s Application for Spousal Maintenance be withdrawn.
14.Certify for Counsel.
Notations
…
A.The Wife asserts in financial details provided to the Husband on 20 December 2010 that she has no capacity to pay spousal maintenance.
B.The Husband may seek to have the application for spousal maintenance reinstated once there has been proper disclosure of Wife’s business interests and financial position.
…
3.The matter be adjourned for mention on 21 April 2011 commencing at 10.00 am at the Federal Magistrates Court of Australia at Dandenong.
4.The matter be listed on 22 June 2011 at 10.00 a.m. for final hearing (with an estimated hearing time of 3 days) at the Federal Magistrates Court of Australia at Dandenong.
5.That the Applicant must pay any hearing fee or make application for waiver of such fee no later than 28 days prior to the final hearing.
6.That at least three (3) months prior to the final hearing, a schedule shall be served by the Applicant upon the Respondent (and for the purposes of these directions shall be taken to be a Notice to Admit Facts) identifying:
(a)the property and superannuation interests of the Applicant and Respondent (including any alleged “add backs” that the Applicant contends should be taken into account);
(b)the alleged value of each item of property and superannuation interest (and if not known then so stating);
(c)the liabilities that the Applicant alleges should be taken into account.
7.That the Respondent shall reply in writing within 14 days identifying, in relation to the schedule:
1.any additional property or superannuation (including add backs) in which the Respondent has an interest that is not included on the list and any other property or superannuation that the Respondent alleges should be taken into account;
2.any item of property or superannuation that is agreed or disputed;
3.any liability that is agreed or disputed about being taken into account;
4. any value that is agreed or disputed.
8.That after the exchange of schedules, the parties (or their legal representatives) shall confer on the telephone or in writing to attempt to agree the property pool. If, as a result of that Conference, the value of any property or superannuation interest is not agreed, then a Court Expert (pursuant to Rule 15.09) shall be appointed to report on the value of the property upon the following terms.
9.That unless the Court Expert is otherwise agreed, the Applicant shall provide to the Respondent:
1. the names of three (3) proposed Court Experts;
2.a schedule of the qualifications and experience of each proposed Court Expert and an estimate of each proposed Court Expert’s fees;
3. a list of the property to be valued.
10.That the Respondent shall nominate one (1) of the proposed Court Experts to undertake a joint valuation of the property referred to.
11.That in the event the Respondent fails to nominate an expert within seven (7) days of receiving the information referred to in Order 9.a. hereof, the Applicant shall nominate the Court Expert.
12.That the nominated expert shall be deemed to have been appointed as a Court Expert in the matter pursuant to Rule 15.09 of the Federal Magistrates Court Rules in the matter.
13.That the Court Expert shall be provided with a joint letter of instructions (including any instructions that may be given by the Court) but if the parties are unable to agree or for any reason the joint instructions cannot be obtained then they shall each provide a letter of instructions to the Court Expert within 14 days after the appointment. The parties shall advise the Court Expert the date before which the report is required.
14.That the parties shall comply with any reasonable request of the Court Expert to provide information and documents to complete the report.
15.That the Court Expert shall provide a report on the value of the property to the parties and the Court, at least 42 days prior to the Hearing.
16.That the costs of the Court Expert are to be paid by the parties equally.
17.That the Court Expert and the parties shall have liberty to apply to list the matter on the giving of two (2) days notice for any further directions and for that mention the Court Expert shall have leave to appear via the telephone.
18.That the parties shall provide a copy of these orders to the Court Expert.
19.That each party must (if they have not already done so) provide to the other party (or parties) a copy of the following documents in the time prescribed (the obligation to disclose continues up to and including the hearing):
1.the documents contained in Attachment A hereto within 28 days;
2.any document requested and particularised in writing by the other party (subject to relevance and any objection or claim of privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents;
3.any document that that party intends to rely upon in support of their application before the Court (save for subpoenaed documents for which no leave to copy has been given) within 28 days of the hearing;
4.any document which, to a material extent, adversely effects his/her own case (subject to any claim of privilege) within 28 days of the hearing;
5.any document requested by any Court Expert within
21 days of receiving notice of the request.
20.That at least 28 days prior to the hearing both parties must comply with the provisions set out in Part VIIIB of the Family Law Act and the Family Law (Superannuation) Regulations, in particular provide procedural fairness to any superannuation fund Trustee (by serving the relevant particulars of the orders sought).
21.That the parties have liberty to apply on the giving of seven (7) days notice in writing to the other party and to the Court in relation to these directions.
22.That each party shall at least twenty eight (28) days before the final hearing:
a. file and serve on each party:
(i) any further affidavit that they intend to rely on in the proceedings (save for the affidavit in reply) and they shall annexe to their affidavit a document setting out full particulars of the parenting or financial orders sought;
(ii) if applicable, an updated statement of financial circumstances;
b. serve on each other party:
(i) a list of affidavits that are intended to be relied upon at the hearing;
(ii) if they have not already done so, a copy of any documents that are intended to be tendered into evidence at the hearing;
(iii) a list of any witnesses that are intended to be subpoenaed to give evidence and a type written account of the evidence intended to be led from that witness.
23.That each party shall, at least 14 days prior to the hearing, file and serve on each other party an affidavit in reply.
24.That subpoenas for the production of documents be returnable at least 28 days prior to the hearing.
25.That each party shall file and serve, no later than three (3) days prior to the hearing, a Case Outline containing:
a.a list of affidavits and applications intended to be relied on at the trial;
b. a document particularising the orders sought by them.
26.That in a financial matter, at the commencement of the hearing, the Applicant and Respondent shall jointly tender a schedule identifying:
a.that property and superannuation interests (including any “add-backs”) that the parties agree should be taken into account;
b.the agreed value of any property and or superannuation interest;
c.any additional property and or superannuation interests (including alleged “add-backs”) that the Applicant and Respondent dispute should be taken into account;
d. the value of any item of property that is disputed;
e.a list of liabilities that are agreed that should be taken into account;
f. a list of liabilities that are in dispute.
27.That the legal representatives and/or the parties shall confer prior to the commencement time for the hearing and attempt to reach agreement about any objections to evidence.
28.That unless they are excused from attendance, the parties and their witnesses shall make themselves available in person for questioning at the hearing.
29.That unless otherwise ordered, any report of a Court Expert shall be admitted into evidence in the proceedings.
30.That if either party requires a Court Expert for questioning in the proceedings, they shall provide the expert with at least 28 days notice in writing of the date for the attendance of the Court Expert and if such notice is not provided a party will only be permitted to questioning the expert with the leave of the Court.
31.That the costs of the Court Expert in having to appear and give evidence shall be borne equally by the parties unless otherwise ordered.
32.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
AND THE COURT NOTES THAT:
A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
i. the filing of documents;
ii.the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
iii. any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.”
As the above orders make clear, they went into some considerable detail so as to as expeditiously as possible, bring this dispute to a conclusion by way of a final hearing sooner rather than later. This was necessary given in the background, which I have already set out earlier in these reasons.
This was a matter that was rapidly steering out of control, out of all proportion to the matters involved and at great cost and doing no credit to either of the parties involved and incurring for them both legal fees and costs, worry and anxiety that should and could have been avoided.
Notwithstanding those orders on 18 February 2011 the applicant filed a further contravention application. That contravention application was accompanied by a number of other affidavits to add to the compendious affidavit material on the Court file and came before the Court as currently constituted on 21 March 2011. The following orders were made that day:
“BY CONSENT THE COURT ORDERS THAT:
1.The husband’s contravention application filed 18 February 2011 be adjourned for hearing on 22 June 2011 commencing at 10.00 am.
2. The parties costs of this day be reserved.
3.The parties be excused from being present on 21 April 2011 but shall be available to give instructions via telephone.”
As the orders made that day make clear, both parties were represented and orders were made that day with a view to endeavouring to keep the matter on track, if I am allowed to use that metaphor, and to preserve the trial date that had been given three months earlier.
The matter was listed for mention on 21 April 2011. On that occasion, only solicitors for the applicant attended and there was no appearance by or on behalf of the respondent. The following orders were made:
“THE COURT ORDERS THAT:
1.The matter be adjourned for mention on 6 May 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
2.The applicant’s costs of this day be fixed at $240.00 and the question of those costs thrown away today be reserved until the adjourned date.
3.The applicant shall serve the respondent with a sealed copy of these orders forthwith.
4.The respondent’s solicitor shall file and serve an affidavit deposing to compliance with the orders and directions for trial by not later than 4.00 pm on 4 May 2011.”
The hearing
Today Mr Babic has appeared as solicitor for the applicant. Ms Khan as solicitor for the respondent. The background to this matter is set out above. The applicants solicitors referred to exhibit A1 which is a letter Wollerman Shacklock Lawyers to Legoll Legal Practitioners dated
22 February 2011 which provided:
“We enclose the Schedule referred to in paragraph 6 of the Order made 22 December 2010 (“the Order”), and in accordance with paragraph 7 we await your response by 9 March 2011.
Please forward to us copies of the documents mentioned in paragraph 19 and Attachment A of the Order and paragraphs 1 and 7 of the Minutes annexed hereto.
Our client has instructed us that he would like Property W sold and after discharge the mortgage, payment of real estate agent’s commission and conveyancing legal costs the residue to be placed in a joint interest bearing account pending agreement between the parties or a Court Order about distribution of same. You will have to provide a Withdrawal of the Caveat registered over that property.
SCHEDULE PURSUANT TO PARAGRAPH 6 ORDER 22-12-2010
1. Assets $
1.1 Property J, Bali 495,000
1.2 Property L – Bali 575,000
1.3 [Morgan] Business in [L] & [R] Bali 600,000
1.4 2 Property W 825,000
1.5 Time share unit in husband’s name – Property Q – Queensland
2,000
1.6 [P] property – Bali 200,000
1.7 Business - [P.Morgan] – Bali - wife failed to disclose ?
1.8 Australian Business- [I] Pty Ltd - not disclosed by wife ?
1.9 Shares in [C] Trust Company – sold by wife undisclosed ?
1.10 Joint shares in [T] Pty Ltd – not disclosed by wife
?
1.11 Husband’s shares in [A] Pty Ltd 2,500
1.12 Husband’s shares in [D] Pty Ltd 1,000
1.13 Husband’s shares in [G] Pty Ltd 1,500
1.14 Wife’s 2009 black Toyota Avanza 18,000
Total 2,677,000
2. Superannuation
2.1 Wife’s superannuation 0
2.2 Husband’s superannuation 0
3. Liabilities
3.1 Joint mortgage with NAB over Property W property 400,000
3.2 Husband’s NAB Visa Gold credit card 6,000
3.3 Debt on Property Q Qld time share unit 2,500
3.4 Joint debts due to [omitted] 30,000
Total 438,500
4. Add Backs
4.1 Home contents disposed of by wife in [J] & [L] properties 50,000
4.2 Home contents disposed of by wife out of Property W property
80,000
4.3 Unpaid earnings & dividends due to Husband from [C.Morgan] & [P.Morgan] 350,000
4.4 Wife’s unauthorized use of Husband’s NAB Visa Gold credit card plus interest 13,420
4.5 Sale proceeds of 2008 red Honda Jazz disposed of by wife 15,000
Total 508,420
Exhibit A1 had been tendered to the Court on 21 April 2011.
It purported to evidence the applicant’s compliance with part of the orders made on 22 December 2010. There had been no proper response to that correspondence. The Court raised with the solicitors for the parties concerns as to whether the matter, given the state of compliance with the orders of 22 December 2010, would be ready for trial on
12 June 2011, a trial that has been fixed for almost five months now.
The parties own properties in Australia and Indonesia. The parties’ material makes clear that they have and continue to travel between Australia, Indonesia and Thailand. The respondent, remains in Bali, Indonesia and is involved in a business which it appears the parties, to one degree or another, were involved in during the course of their relationship.
It is in no small part a dispute over that business and events going back many years now, including a dispute over moneys alleged to be owing arising as a result of work that the applicant claims he carried out for that business in Indonesia, that has complicated (and that is putting it mildly) the expeditious conduct of this matter to a trial.
The material filed by the parties makes clear, there are a plethora of allegations made by each party regarding alleged non-compliance with Court orders and allegations in relation to alleged disposal or destruction of property they claim to be part of the matrimonial property pool.
The turgid detail of the allegations made in the parties’ material belies their age. By way of an example the number of affidavits from people who are Indonesian citizens or residents that each of the parties rely on in making allegations against each other does nothing to assist in the financially prudent and expeditious resolution of these proceedings and has simply served to add to the excessive number of Court hearings.
After the Court raised with the solicitors for each of the parties the concerns regarding compliance with the orders of 22 December 2010 the matter was stood down to enable the solicitors for both parties to get instructions.
To the great credit of the solicitors, they have spent now almost five hours taking instructions and engaging in discussions which have produced a minute which reflects a commendable degree of pragmatism on their part, and (hopefully) reflects a recognition on their client’s part that the nettle in these proceedings needs to be grasped.
The parties have a minute of proposed orders which the parties accept will necessitate the trial date (that had been fixed over five months ago) being vacated and is, (save for one issue to which I will return) by consent. Those orders were signed by the solicitors for each of the parties, having got the appropriate instructions. They are:
“THE COURT ORDERS THAT:
1. The final hearing fixed for 22 June 2011 be vacated.
2.The properties listed in Annexure A situated in Bali be sold forthwith and the net sale proceeds to be transferred to Australia and held in a trust account or joint bank account, not to be released unless both parties consent in writing or pursuant to a court order.
3.The business, [P.Morgan] listed in “Annexure A” be sold forthwith and the net sale proceeds to be transferred to Australia and held in a trust account or joint bank account, as per same condition in paragraph 2.
4.The nominee, [name omitted] supervise the sales and provide to the parties a list of Real Estate and business agents, for the parties to make enquiries about appointing same to handle the sales.
5.The respondent forthwith provide a withdrawal of caveat which she has lodged over Property W, Australia (the “Property W property”).
6.The applicant do all such acts and things and sign all such documents as may be required to sell the Property W property and that for the sale proceeds there shall be paid:
a.Real Etate Agents commission and conveyancing costs;
b.The amounts necessary to discharge the National Australia Bank mortgage secured over the Property W property; and
c.The balance to be held in trust or joint bank account on same condition in paragraph 2.
7.The respondent file and serve any Affidavits and further materials regarding the ownership of the [Morgan] business in [K] within 14 days, including all documentation establishing the ownership of the business, business name and any contract, arrangement or understanding in relation to same with [P.Morgan].
8.The applicant file and serve any Affidavit in reply within
28 days.
9.The matter be adjourned for a Mention on 22 June 2011 commencing at 10am at the Federal Magistrates Court of Australia at Dandenong to determine whether the [Morgan] business in [K] should be included in the Real Estate Bali list at Annexure A to these orders and sold in accordance with order 3 herein.
10.The respondent’s solicitor pay the applicant’s costs reserved on 21 April 2010 within 7 days.
AND THE COURT NOTES THAT:
A. The orders were by consent.
B.The parties had not complied with the order and directions of 22 December 2010.
C.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
i. the filing of documents;
ii.the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
iii any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
D.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.”
The one issue that remained, at least today between the parties concerns the issue of whether [Morgan] at [K] in Indonesia should be included in a list of real estate held in Bali which is to be sold and the proceeds of which are to be held on trust pending agreement of the parties and/or further order of this Court.
As the rest of the orders the parties have agreed, the details of which I have incorporated into these reasons make clear the parties have a number of properties and businesses or a business in Bali, as well as property in Property W, Melbourne, Victoria. All of those properties are to be sold and the proceeds of which, as I indicated, are to be placed in a interest bearing trust account pending agreement of the parties, as I indicated, or further Court order.
Sensibly, given that there is today no evidence and indeed no material in relation to this eleventh hour dispute over the ownership and whether the [Morgan] business at [K] should be included in the property pool, the solicitors for each of the parties have indicated that the appropriate and most prudent and proportionate response to that issue would be for the partes to be given an opportunity to file some material on that issue. The matter should be adjourned for a hearing to determine whether that [business] should be included in the real estate in Bali that is otherwise enumerated at annexure A to the agreed minute and sold in accordance with order 3 of the agreed minute.
This is a welcome, although a long overdue realisation by the solicitors for the applicant and the respondent that this matter needs to come to a conclusion sooner rather than later.
A further matter to note is that on 21 April 2011, as I indicated, the respondent solicitors did not attend and the applicant’s costs thrown away were reserved. Ms Khan, to her great credit, has indicated to the Court that she will personally meet the applicant’s costs thrown away as a result of that mention in the amount of $240.00 within 7 days. This is a sensible and professional acknowledgement that her oversight as she indicated on transcript caused costs to the applicant.
Having set out the background to this matter, I will make orders in terms of the minute which I have gone through with the solicitors for each of the parties. That will vacate the trial listed on the 22 June 2011. I will have the orders made in terms of the minute which will see all of the property held in Australia and Indonesia, save for the dispute over the [Morgan] business at [K], which will be the subject of further material from the parties and an interim hearing on the 22 June 2011.
I will order a transcript of these reasons which will be on the file and serve as a aide-memoire, if nothing else, to the sad background to this matter.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 6 May 2011
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