Wilson and Estate of the Late Mr J Wilson & Ors

[2011] FamCA 469

FAMILY COURT OF AUSTRALIA

WILSON & ESTATE OF THE LATE MR J WILSON AND ORS [2011] FamCA 469

FAMILY LAW – INJUNCTIONS – Preservation of property

Family Law Act 1975 (Cth)

APPLICANT: Ms Wilson

1stRESPONDENT: Estate of the late Mr Wilson  

2nd RESPONDENT: Ms P

3^rd RESPONDENT: Official Trustee in Bankruptcy

FILE NUMBER: MLC 7016 of 2007

DATE DELIVERED: 3 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

Orders

1. That the applicant wife have leave to proceed without notice to the respondent.

2. That until further order, Ms P be restrained from disposing of, transferring, diminishing the value of, or in any way dealing with, any monies received from the Tower Life Policy Number … .

3. That a sealed copy of these orders, together with a copy of the application in case filed 27 April 2011 and the affidavit in support thereof, be served as soon as practicable by the lawyers for the wife upon the following:

   (a)    Ms P;

   (b)    The trustee in bankruptcy of the Estate of the Late Mr J Wilson; and

   (c)    The trustee in bankruptcy of Ms P.

4. That the application in a case filed 27 April 2011 be otherwise adjourned to the Judicial Duty List at 10.00am on 2 June 2011.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons this day be transcribed.

3. That the costs of the wife be fixed in the sum of $2500 and be reserved to the return date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7016 of 2007

Ms Wilson

Applicant

And

Estate of the late Mr J Wilson and Ors 

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 27 April 2011 and it is sought to be proceeded with on an ex parte basis.  The genesis of the application lies in orders made by Young J in October 2006.  The orders show on that day that the applicant wife was pursuing property proceedings and she was represented by legal practitioners but the husband appeared unrepresented.  In making the final orders on 6 October 2006 Young J, in some very brief extempore reasons, indicated that he thought the outcome of the proceedings which had been determined by agreement between the parties was just and equitable. 

2. A significant order that his Honour made was that the husband prepay his life insurance premiums with Tower Life, which is an insurance company.  His Honour then ordered the husband to execute all necessary documents to ensure that the beneficiary of that policy was the wife.  His Honour then set out a variety of other things associated with that policy.  Years have now gone by and it would appear that the husband has died, but re-married before doing so.  The affidavit material of the wife suggests that the husband converted the life policy into cash just prior to his death and it is natural inference to presume that he gave the money to his new wife, who I am told is an undischarged bankrupt.  The difficulty is that what his Honour was dealing with, quite clearly in 2006, was property which was seen as the interest of the wife as the beneficiary of a life policy.  It transpires that Tower Life has now asserted that the policy was, in fact, a superannuation policy.

3. The considerations between the two are completely different and I am not prepared to embark upon an inquiry as to what Tower Life’s position was and it may not matter.  The essential issue today is that the wife has no confidence in the actions of the second wife Ms P who, presumably, would have been alerted or should have been alerted by the husband to the fact that the Tower Life policy, which is quite precise in description, really belonged to his then former wife. 

4. This is an appropriate case, therefore, to proceed without notice to the person who has asserted to have received those funds.  As a precaution, I propose to bring the matter back in one month’s time to give Ms P an opportunity to be heard on the subject, as well as the trustee in bankruptcy of Ms P, if that person is known, not to mention a trustee in bankruptcy of the late husband, who appears also to have been in an impecunious financial position.

5. The basis of any application for an injunction lies in section 114 of the Act.  The fundamental tenet of section 114 is that the Court should only make an injunctive order if there is an interest in property to be protected and that it is proper to so protect, pending the further determination of the matter.  Based on the assertions of the wife that she and her legal advisers, not to mention the Court, appear to have been misled by the husband in 2006.  It seems appropriate and proper in the circumstances to make the injunction.   

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 May 2011.

Associate: 

Date:  16 June 2011