…could not be enforced by third party debt notice, nor s106A Family Law Act 1975 (Cth)
In Aitken (No. 6) [2022] FedCFamC1F 996 (14 December 2022), Wilson J heard an urgent application for enforcement of an order.
The order provided for the husband and wife to do all things necessary to cause their company (D Pty Ltd) to declare a fully franked dividend to cause a cash payment to the wife of $8,693,345.66.
The wife sought a third party debt notice issue against D Pty Ltd and ordered that the registrar “execute the necessary documentation to cause [D Pty Ltd] … to declare” the dividend ([11]).
The court said (from [26]):
“ … [T]he … wording was ‘ … to cause [D Pty Ltd] to declare a fully franked dividend so as to cause a cash payment to the wife in the sum of $8,693,345.66.’ … The order is not expressed in such manner that D Pty Ltd must pay the wife the … sum stated … (…)
[28] [That] paragraph … is … the outcome of a s79 application in which property interests of the parties have been altered in such manner that the sum of $8,693,345.66 is to be transferred to the wife. To contend that a ‘debt’ is … created seems to me to strain the concept of an action for debt … If the dividend were not declared, did the wife have a debt that she could pursue? … [S]he did not. … (…)
[34] [The husband] … submitted that the final order … did not direct any party specifically to execute an identified deed or instrument. … The draft … was … expressed in the passive tense of ‘causing’ an event to occur and it did not identify that a particular person was directed to execute a deed or instrument. It seemed to me that … the threshold requirement for the invocation of s106A had not been engaged in this case. (…)
[38] One of the … impediments to the grant of relief the wife seeks … is the fact that no order has yet been made requiring the husband to execute a specific document.
[39] … I direct the husband to execute forthwith the resolution …
[40] If the husband fails or refuses to execute that resolution … then I order that a registrar of this court executes that resolution … in pursuance of s106A of the Family Law Act. …”
The court also ordered that the wife have authority to pay $8,693,345.66 from D Pty Ltd’s bank accounts to her own accounts.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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