Aktar and Nerbo and Ors

[2013] FamCA 1124

FAMILY COURT OF AUSTRALIA

AKTAR & NERBO AND ORS [2013] FamCA 1124

FAMILY LAW – PROPERTY – Final orders by consent – husband’s parents to be joined as parties – payment to the wife by the husband or the husband’s parents.

Family Law Act 1975 (Cth)

APPLICANT: Ms Aktar

RESPONDENT: Mr Nerbo

SECOND RESPONDENT: Mr Nerbo (Snr)

THIRD RESPONDENT: Ms Nerbo (Snr)

FILE NUMBER: MLC 5919 of 2011

DATE DELIVERED: 5 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trim

SOLICITOR FOR THE APPLICANT: John V Hayes & Co Pty Ltd

COUNSEL FOR THE FIRST RESPONDENT: Mr Shaba

SOLICITOR FOR THE FIRST RESPONDENT: Zindilis Lawyers

COUNSEL FOR THE SECOND RESPONDENT: In person

SOLICITOR FOR THE SECOND RESPONDENT: N/A

COUNSEL FOR THE THIRD RESPONDENT: In person

SOLICITOR FOR THE SECOND RESPONDENT: N/A

Orders

IT IS ORDERED THAT

1. Mr Nerbo (Snr) and Ms Nerbo (Snr) be joined as parties to the proceedings.

IT IS ORDERED BY CONSENT THAT

1. All previous orders be discharged.

1. The Husband and/or the Second Respondent and/or the Third Respondent pay to the Wife’s solicitors’ trust account (or another mode agreed between the parties in writing) the total sum of $25,000.00 (“the Payment”), being:

   a.         $5,000.00 by 15 July 2013 (“the First Payment”);

   b.         $5,000.00 by 15 August 2013 (“the Second Payment”);

   c.         $5,000.00 by 15 September 2013 (“the Third Payment”);

   d.         $5,000.00 by 15 November 2012 (“the Fourth Payment”);

   e.$5,000.00 by 15 December 2012 (“the Fifth Payment”) (collectively, “the Payments”).

2. In the event that the Payments are not made by their due date for payment, the Husband and/or the Second Respondent and/or the Third Respondent shall within 14 days of the terms set out in these Orders being breached sign all documents and do all things necessary to place their interests in the real property situate at B Street, Suburb C, Victoria (“the Real Property”), on the market for sale, and the proceeds of sale be applied as follows:

   a.Firstly to pay all costs, commissions and expenses of the potential said sale.

   b.Secondly to discharge any mortgage and any other encumbrances affecting the Real Property.

   c.Thirdly, so much of the Payment as is then outstanding to the Wife, plus 10 per cent interest on the amount owing from its due date to the actual date that the Payment is satisfied in full.

   d.The balance to the Husband and/or the Second Respondent and/or the Third Respondent.

3. Should the Real Property need to be sold due to the Husband and/or the Second Respondent and/or the Third Respondent’s failure to make the Payment in accordance with the terms set out herein, it be sold on the following terms and conditions (“the sale”):

   a.The selling agent shall be agreed in writing between the parties within 14 days of default, and failing agreement as nominated by the President of the Real Estate Institute of Victoria (“REIV”) or his or her nominee.

   b.The reserve price shall be agreed in writing between the parties within 14 days of default, and failing agreement as nominated by the President of the REIV or his or her nominee.

   c.The mode of sale shall be agreed in writing between the parties within 14 days of default, and failing agreement as nominated by the selling agent.

   d.All parties shall forthwith comply with all reasonable directions of the selling agent to facilitate the potential sale process.

4. Until the Payment is made in full no party shall transfer or encumber the Real property, or encumber any other property they own, without the consent in writing of all the other parties, which consent shall not be unreasonably refused.

5. Contemporaneously with or as soon as possible after the Payment being satisfied in full, the Wife sign all necessary documents to cause any caveat(s) she has lodged against real properties legally owned by the Husband and/or the Second Respondent and/or the Third Respondent to be removed, and will then provide those documents to the Husband and/or the Second Respondent and/or the Third Respondent or their agents for use by them.

1. Liberty be reserved to all parties to apply with respect to the terms and conditions of and the execution of the potential sale, and the Payment.

2. The Husband and the Wife each retain the motor vehicles registered in their own names and in their possession as at the date of these Orders.

10. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

11. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent Orders:

a.Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action and superannuation) in the possession of such party as at this date.

b.Monies standing to the credit of the parties in any bank account in their name alone are to become the property of that named party.

12. Certification as to advocacy.

NOTATIONS

A.The parties intend that the Orders set out herein shall as far as practicable finally determine the financial relationship between them and avoid further property and maintenance proceedings between them.

B.The Wife’s solicitor will write to the Husband’s new solicitor within 28 days of the date of these Orders setting out her firm’s trust account details.

IT IS FURTHER ORDERED BY THE COURT THAT

13. All extant applications be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

IT IS DIRECTED BY THE COURT THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym & Aktar & Nerbo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 591 of 2011

Ms Aktar

Applicant

And

Mr Nerbo

First Respondent

And

Mr Nerbo (Snr)

Second Respondent

And

Ms Nerbo (Snr)

Third Respondent

REASONS

1. In this matter I have been asked to make final property orders.  Those orders involve a payment to the wife of $25,000 in instalments over the period commencing 15 July 2013 to 15 December 2013.  Somewhat unusually, those orders are framed on the basis that the payment is to be made by the husband or his parents, Mr Nerbo (Snr) and Ms Nerbo (Snr).  They also provide that in the event that the payments are not made by either the husband or his parents that the home in which his parents live, which is registered in their joint names, will be sold. 

2. The wife will then be paid so much as is then outstanding with interest on that amount and the balance thereafter to be paid to the husband’s parents.  When the matter was listed before me yesterday, the husband’s parents were in Court.  However, they were not represented nor did they have the assistance of an interpreter.  Given the nature of these orders and that they potentially involve the sale of the home in which they live, I was not prepared to make the orders on that basis.  They appear in person again today.  However, they now have the assistance of an interpreter and they have told me that they have sought advice from the legal aid duty solicitor at the Court this morning. 

3. They assure me that the orders have been read to them, that they understand those orders and the effect of those orders upon them and that they wish to consent to those orders and ask me to make the orders, in the terms as amended by me, finalising this matter.  On that basis, I propose to join the husband’s parents as parties to these proceedings and I will make the orders sought by all the parties finalising this matter. 

4. There is a very small pool, there are questions in relation to the husband’s initial contributions, and I am satisfied in all of the circumstances that it is just and equitable to make orders and that the proposed orders are just and equitable.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 June 2013.

Associate: 

Date:  22 May 2014