Henry Torobert v Mary Torobert (2012) SC1198

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Cannings J, Murray J
• Judgment Date: 24 September 2012
• Citation: (2012) SC1198
• Docket Number: SCA NO 68 0F 2010
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1198

Full Title: SCA NO 68 0F 2010; Henry Torobert v Mary Torobert (2012) SC1198

Supreme Court: Salika DCJ, Cannings J, Murray J

Judgment Delivered: 24 September 2012

SC1198

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 68 0F 2010

HENRY TOROBERT

Appellant

V

MARY TOROBERT

Respondent

Waigani: Salika DCJ, Cannings J, Murray J

2012: 26 June, 24 September

FAMILY LAW – settlement of property by National Court – Matrimonial Causes Act, Section 75 – matrimonial property – “settlement of property … as the court thinks just and equitable in the circumstances”.

The appellant appealed on 35 grounds to the Supreme Court against a settlement, upon dissolution of marriage, of matrimonial property by the National Court under Section 75(1) of the Matrimonial Causes Act, arguing that the settlement was not just and equitable by virtue of the trial judge making ten categories of errors of law: (1) failing to attribute monetary values to assets comprising the matrimonial property; (2) including as matrimonial property shares in and properties acquired by a company in which the respondent had no legal interest; (3) including as matrimonial property a residential property in Australia in which the respondent had no legal or beneficial interest; (4) overestimating the respondent’s contribution to acquisition and management of assets of the family company of the appellant and the respondent; (5) finding that the appellant failed to disclose all property in which he had an interest; (6) ordering transfer to the respondent of a residential property beneficially owned by the appellant’s brother; (7) taking irrelevant considerations into account concerning the personal conduct of the appellant; (8) ruling that costs of the trial be awarded to the respondent; (9) finding that the appellant had the ability to create significantly more wealth than the respondent; and (10) finding that the appellant had failed to account for a substantial amount of funds of the family company.

Held:

(1) While it is conventional and may be preferable for the Court to attribute values to each asset comprising the pool of matrimonial property before ordering what settlement of property is just and equitable, it is not necessary to do so as nothing in the Act requires that it be done. There was no error in that regard.

(2) The trial judge focussed unduly on the particular properties owned by the company in which the respondent held no shares rather than on the appellant’s interests in the shares of that company but made no overall error by including the assets of the company in the pool of matrimonial property or in concluding that the contribution of the parties to the company’s properties was the appellant 85% and the respondent 15%.

(3) The appellant’s 50% share of the residential property in Australia was matrimonial property as it was purchased during the period of the marriage.

(4) There was an overestimation of the contribution that the respondent made (60%) to the acquisition of properties and income of the jointly-owned company. The most appropriate assessment of the contributions was the appellant 50% and the respondent 50%.

(5) The finding of lack of disclosure of property that was made against the appellant was unsupported by the evidence.

(6) It was not just and equitable to order transfer from the appellant to the respondent of a property that was beneficially owned by the appellant’s brother.

(7) The trial judge did not err by taking into account the personal conduct of the appellant, in particular betrayal of financial trust and engaging in extra-marital affairs.

(8) The trial judge did not err in awarding costs of the trial to the respondent as the question of costs is inherently a matter of discretion and the trial judge exercised the discretion judicially.

(9) The finding that the appellant had the ability to create significantly more wealth than the respondent was not supported by the evidence.

(10) The appellant had failed to account for a substantial amount of money held by the jointly-owned company.

(11) The appeal was upheld and the orders of the National Court were quashed; and the Supreme Court, having under Section 6(2) of the Supreme Court Act for the purposes of determining an appeal all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court and under Section 16(c) of the Supreme Court Act power to give such judgment as ought to have been given in the first instance, directed the parties to settle the matter failing which the Court may order appointment of a mediator under the ADR Rules.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855

Bean v Bean [1980] PNGLR 307 Bean v Bean [1980] PNGLR 307

Coulson v Coulson [1961] FLR 379

John Mur v Les Kewa (2010) N4016

Lewis v The State [1980] PNGLR 219

Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522

Medaing v Ramu Nico Management (MCC) PNG Ltd (2011) SC1154

Nadesalingam v Nadesalingam (1998) N1754

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Papua New Guinea v Barker [1977] PNGLR 386

PNG Ports Corporation Ltd v Canopus No 71 Ltd (2010) N4288

ToRobert v ToRobert (2010) N4003

White v White [2001] AC 596

William Moses v Otto Benal Magiten (2006) SC875

APPEAL

This was an appeal to the Supreme Court against an order by the National Court as to settlement of matrimonial property under Section 75(1) of the Matrimonial Causes Act.

Counsel

I Molloy & W Neill, for the appellant

G Gorua, for the respondent

24 September, 2012

1. BY THE COURT: This is an appeal against an order of the National Court for settlement of matrimonial property upon dissolution of marriage. The appellant, Sir Henry ToRobert, and the respondent, Mary ToRobert, married in 1981. They ceased living together as husband and wife in 2001 and their marriage was dissolved in 2005. The appellant filed a petition proposing division of matrimonial property which was contested by the respondent, who filed a cross-petition. A trial was conducted in the National Court before Justice Gavara-Nanu and an order under Section 75(1) of the Matrimonial Causes Act was made on 31 March 2010, allocating various property to the parties and ordering the transfer of interests to reflect the findings of the Court (ToRobert v ToRobert (2010) N4003). The appellant is aggrieved by that order as he feels that too much has been awarded to the respondent.

NATIONAL COURT PROCEEDINGS

Identification of matrimonial property

2. The trial judge identified 22 items of matrimonial property, comprising:

· 16 residential properties (12 in Port Moresby, two in Kokopo and two in Cairns), some held in the individual names of the appellant or the respondent, some held jointly and some held by companies, Midal Enterprises Ltd (“Midal”) and Hema Investments Ltd (“Hema”), in which the appellant and/or the respondent held shares;

· shares in three companies, Midal, Hema and Alhambra Ltd;

· two bank accounts;

· household and personal property, including motor vehicles.

Valuation

3. His Honour rejected the appellant’s submission as to the values to be attributed to each item of property as the respondent had no input into how the figures were arrived at. His Honour found that it was unnecessary to have each item valued as there was sufficient material before him to arrive at a just and equitable outcome. It was preferable, his Honour held, to take a “global approach … by determining the global value of the total number of properties given to each party from the property pool”.

Findings

4. His Honour made the following findings for the purpose of apportioning the matrimonial property:

· The appellant made special contributions to the properties held by Hema because of his financial expertise and entrepreneurial skills. However, he had exclusive control over finances generated by the Hema properties, enriched himself from those finances and used substantial funds from Hema’s account without the respondent’s knowledge which remain unaccounted for.

· The respondent made significant contributions to the properties held by Hema, including providing land, which she held in her own name, on which a block of five residential units was constructed, and the rental income from those units was used to acquire all the other Hema properties. The appellant was a very busy person and this required the respondent to attend to the Hema properties.

· The respondent also attended to the properties held by Midal, making significant non-financial contributions.

· The appellant, without the respondent’s knowledge, acquired one of the Cairns properties (Kewarra Beach) by using money withdrawn from a Hema bank account.

· The appellant withdrew approximately K543,000.00 from Hema’s account without the respondent’s knowledge, which has reduced the value of the pool of matrimonial property.

· The appellant deliberately failed to disclose to the court all the properties which he owned or in which he had a direct interest, displaying a “lack of candour”, and...