Antoun & Antoun (No 2)

Case [2024] FedCFamC1F 354

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Antoun & Antoun (No 2) [2024] FedCFamC1F 354

File number(s): PAC 796 of 2017
Judgment of: WILLIAMS J
Date of judgment: 27 May 2024
Catchwords: FAMILY LAW – PROPERTY – Major complex financial proceedings list – Interim applications – Where the wife alleges the husband has divested himself of assets to minimise the matrimonial pool – Application for joinder – Application for ant-suit injunction – Application to strike out pleadings – Application for the sale of property and the distribution of proceeds of sale as a partial property settlement – Leave granted to amend amended points of claim within 28 days – Order made for sale of properties and partial property settlement to the wife
Legislation:

Family Law Act 1975 (Cth) ss 45, 45A, 75, 78, 79, 80, 106B, 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 56, s 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03

High Court Rules 2004 (Cth) r 27.04

Contracts Review Act 1980 (NSW)
Cases cited:

Akbar & Gandega (2023) 67 Fam LR 593; [2023] FedCFamC1A 174

Antoun & Antoun [2023] FedCFamC1F 129

Baba & Jarvinen (1980) FLC 90-882

Bearup & Bearup (1993) 16 Fam LR 797

Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81

CSR Ltd v Cigna Insurance Australia (1997) 189 CLR 345; [1997] HCA 33

Eastburn & Eastburn [2022] FedCFamC1F 706

Furtado & Furtado [2011] FamCA 1018

Harris & Harris [1993] FamCA 49

Henry v Henry (1996) 185 CLR 571; [1996] HCA 51

Hohol v Hohol (1980) FLC 90- 824; [1981] VR 221

In the Marriage of Af Petersons (1981) FLC 91-095; [1981] FamCA 50

In the Marriage ofBiltoft (1995) FLC 92-614; [1995] FamCA 45

Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41

Khalif & Khalif [2021] FamCAFC 123

Lan & Hao (No 2) (2017) FLC 93 – 795; [2017] FamCAFC 175

Lederer & Hunt (2007) FLC 93-311; [2007] FamCA 55

Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14

In the Marriage of Zschokke (1996) 20 Fam LR 766

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Osferatu & Osferatu [2012] FamCA 408

Quincey & Quincey [2023] FedCFamC1A 30

Silvia (Trustee) v Williams [2018] FCAFC 194

Strahan & Strahan (2009) FLC 93-466; [2009] FamCAFC 166

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Wayne & Dillon & Anor (2008) Fam LR 543; [2008] FamCAFC 204

Zadenev & Zadenev [2013] FamCA 838

Division: Division 1 First Instance
Number of paragraphs: 226
Date of hearing: 29 February 2024, 1 and 12 March 2024
Place: Heard in Sydney, delivered in Melbourne
Counsel for the Applicant: Mr Ford
Solicitor for the Applicant: Lewarne & Goldsmith
Counsel for the First Respondent: Mr Wong
Solicitor for the First Respondent: Barkus Doolan Winning Family Lawyers
Counsel for the Second, Third and proposed…

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AGLC
Antoun & Antoun (No 2) [2024] FedCFamC1F 354
Case
[2024] FedCFamC1F 354
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Antoun & Antoun (No 2) involved the wife bringing various interim applications concerning asset distribution and proceedings against third parties during her ongoing property settlement with her husband. The court was tasked with deciding on the wife's applications to join a third party, restrain her from prosecuting separate proceedings, and sell certain properties to provide a partial property settlement. The wife argued that the husband had divested himself of assets, and she needed to ensure an equitable distribution of the matrimonial assets.

The court considered the wife's submissions regarding the appropriateness of exercising discretion to order the sale of properties and distribute the proceeds. It also weighed the husband's and third parties' submissions regarding costs and the potential impact on the final property settlement. The court acknowledged the imbalance in the parties' capacities to meet legal fees and the need for a level playing field to ensure justice.

The court determined that the net proceeds of sale, after costs and outgoings, should be distributed with $250,000 to the wife as a partial property settlement, and the balance to be placed into a controlled monies account. This decision was based on the submissions of all parties, the imbalance in their financial capacities, and the need to enable the wife to meet her legal costs. The court also considered the relevant statutory provisions and the principle that each party should bear their own costs.

The court made several orders, including joining Ms BB as the eighth respondent, dismissing some applications, allowing the wife to amend her points of claim, and ordering the sale of specific properties. It also detailed the process for dividing the sale proceeds, handling capital gains tax, and managing other procedural matters. The court set a date for a judicial settlement conference and a final hearing to resolve the proceeding.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Ms BB be joined as the eighth respondent in these proceedings.

2. The wife’s Application in a Proceeding filed 29 March 2023 be otherwise dismissed.

3. On or before 28 days from the date of these orders, the wife:

(a) File and serve any Further Amended Points of Claim;

(b) File and serve any Application in a Proceeding to join any other party to the proceeding;

4. Within 28 days of service of a Further Amended Points of Claim, any respondents affected by the wife’s Further Amended Points of Claim file and serve an Amended Defence.

5. The application in a proceeding filed 25 January 2023 by the fourth, fifth, sixth and twelfth respondents is dismissed;

6. H Group be joined as the 13th respondent in these proceedings;

7. Q Pty Ltd be joined as the 17th respondent in these proceedings.

8. Contemporaneously with the settlement of the sale, or earlier , if agreed in writing, the Wife do all things and sign all documents necessary, at her cost, to lodge a Withdrawal of the Caveat lodged by her (dealing number …) on the Suburb T property.

9. That within 7 days of the date of these Orders, the Husband, as director of K Pty Ltd, will do all acts and things and execute all documents necessary to effect the sale of the Suburb T property for the best price reasonably obtainable as set out in the following manner:

(a) list the Suburb T property for sale with the method of sale to be as recommended by the agent appointed by the parties, as agreed in writing (“the agent”);

(b) co-operate in every way with the agent including (without limiting the generality of the foregoing):

(i) making the key available to the agent;

(ii) allowing inspection of the Suburb T property at all reasonable times requested by the agent;

(iii) ensuring the Suburb T property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(iv) signing all documents requested by the agent in relation to the listing for sale of the Suburb T property except a contract or agreement for sale which has not been authorised by the solicitor appointed with carriage of the sale.

(c) both the Husband and the Wife ("the parties") will ensure that they will not undertake any action so as to hinder or prevent a sale being effected;

(d) the Husband shall instruct UU Lawyers to have the conduct of the sale ("the Solicitor");

(e) the Husband shall execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;

(f) the Husband will do all things and sign all documents necessary to authorise the Agent and the Solicitor to liaise with the Wife in relation to the sale;

(g) in the event that the Suburb T property is listed for sale by auction and the bidding at the auction does not reach the reserve price such of the parties as are present at the auction may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb T property at a price which is not more than 5% below the reserve price, or at such other price as the parties agree upon in writing;

(h) in the event the Suburb T property is not sold at the public auction conducted in accordance with Order 2.7 above, the Husband shall do all acts and things and sign all documents necessary so as to list the Suburb T property for sale by private treaty with the agent within 14 days of the auction date;

(i) the sale price at which the Suburb T property shall be listed shall be such price as the parties agree upon in writing or, in the absence of agreement reached within 14 days from the date of these Orders shall be the price nominated by the agent;

(j) if the Suburb T property remains unsold 12 weeks from the date of being listed for sale by private treaty (if so listed by that method), the Husband shall do all acts and things and sign all documents necessary to continue to relist the Suburb T property for sale by public auction again at three monthly intervals.

10. At settlement of the sale of the Suburb T property the Husband do all things and sign all documents necessary to divide the proceeds of sale of the Suburb T property as follows:

(a) to meet all costs associated with the sale of the Suburb T property including agent fees/commission, marketing and auction expenses and legal costs of the solicitor appointed under these Orders;

(b) in discharge of all monies owing to Australia and New Zealand Banking Group Limited (“ANZ Bank”) as may be required by ANZ Bank to give clear title to the incoming purchaser at settlement;

(c) in discharge of all municipal and water rates outstanding on the Suburb T property;

(d) to pay the sum of $250,00 to the wife as part property settlement;

(e) the remaining proceeds of sale, if any, be paid into a controlled monies account on behalf of the husband and wife

11. In relation to any CGT payable on the sale of the Suburb T Property:

(a) within 3 months of the end of the financial year in which the Suburb T property is sold, the Husband do all things and sign all documents necessary to lodge the tax return for K Pty Ltd so that an Assessment can issue;

(b) simultaneously with lodging the company tax return, the Husband will direct his accountant to prepare a capital gains tax calculation arising from the sale of the Suburb T property and will provide a copy of the calculation to the Wife;

(c) within 7 days of receiving the Assessment from the ATO, the Husband provide to the Wife a copy of the Assessment;

(d) within 14 days of the Husband providing the Assessment to the Wife, the Husband and wife do all acts and things and sign all documents necessary to pay to the ATO from the controlled monies account , the sum necessary to pay in full the CGT Liability only as calculated by the Husband's accountant pursuant to order 11 (b) above

12. That within 7 days of the date of these Orders, the Husband, as director of K Pty Ltd, will do all acts and things and execute all documents necessary to effect the sale of the Suburb EE property for the best price reasonably obtainable as set out in the following manner:

(a) That within 14 days give written notice (the Notice) to Q Pty Ltd (Q Pty Ltd) pursuant to Clause 32 of the registered lease … with such offer to sell to the latter in accordance with its first right of refusal, being at a price agreed between the spouse parties;

(b) In the event that Q Pty Ltd serves an Acceptance Notice, given effect to the sale in accordance with Clause 32;

(c) In the event that Q Pty Ltd rejects the Notice, list the Suburb EE property for sale by private treaty for the same price and on the same terms as offered to Q Pty Ltd unless otherwise agreed in writing or ordered by the Court.

(d) co-operate in every way with the agent including (without limiting the generality of the foregoing):

(i) making the key available to the agent;

(ii) allowing inspection of the Suburb EE property at all reasonable times requested by the agent;

(iii) ensuring the Suburb EE property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(iv) signing all documents requested by the agent in relation to the listing for sale of the Suburb EE property except a contract or agreement for sale which has not been authorised by the solicitor appointed with carriage of the sale.

(e) both the Husband and the Wife ("the parties") will ensure that they will not undertake any action so as to hinder or prevent a sale being effected;

(f) the Husband shall instruct UU Lawyers to have the conduct of the sale ("the Solicitor");

(g) the Husband shall execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;

13. At settlement of the sale of the Suburb EE property the Husband do all things and sign all documents necessary to divide the proceeds of sale of the Suburb EE property as follows:

(a) to meet all costs associated with the sale of the Suburb EE property including agent fees/commission, marketing and auction expenses and legal costs of the solicitor appointed under these Orders;

(b) in discharge of all monies owing to Australia and New Zealand Banking Group Limited (“ANZ Bank”) as may be required by ANZ Bank to give clear title to the incoming purchaser at settlement;

(c) in discharge of all municipal and water rates outstanding on the Suburb EE property;

(d) if the wife has not been paid $250,000 or any lesser amount from the proceeds of the Suburb T property, pay to the wife $250,000 or such lesser amount as may be outstanding to her, as partial property settlement;

(e) the remaining proceeds of sale, if any, be paid into a controlled monies account on behalf of the husband and wife

14. In relation to any CGT payable on the sale of the Suburb EE Property:

(a) within 3 months of the end of the financial year in which the Suburb EE property is sold, the Husband do all things and sign all documents necessary to lodge the tax return for K Pty Ltd so that an Assessment can issue;

(b) simultaneously with lodging the company tax return, the Husband will direct his accountant to prepare a capital gains tax calculation arising from the sale of the Suburb T property and will provide a copy of the calculation to the Wife;

(c) within 7 days of receiving the Assessment from the ATO, the Husband provide to the Wife a copy of the Assessment;

(d) within 14 days of the Husband providing the Assessment to the Wife, the Husband and wife do all acts and things and sign all documents necessary to pay to the ATO from the controlled monies account, the sum necessary to pay in full the CGT Liability only as calculated by the Husband's accountant pursuant to order 14(b) above;

15. The Wife’s Amended Application in a Proceeding filed 7 October 2022 be otherwise dismissed.

16. All extant applications be listed for mention on Wednesday 29 May 2024 at 9.30 am for the purposes of:

(a) Fixing a date for a judicial settlement conference with Chief Justice Alstergren;

(b) A date for final hearing, in the event the proceeding does not resolve after a judicial settlement conference;

(c) Any other extant procedural matter.

Background

Background to the litigation

Prior to the commencement of the hearing, the wife’s claim against the proposed 9th, 14th, 15th, and 16th respondents was resolved by consent, and consent orders were made accordingly. BACKGROUND The husband and the wife are both aged 48 years. They married in 2000 and separated on 1 December 2015 according to the wife, and 6 December 2015 according to the husband, when he left the family home. There are four children of the marriage now aged 23, 21, 18 and 15 years. The wife is a finance professional, and the husband is a tradesperson. During the marriage the parties operated a business, H Pty Ltd (“H Pty Ltd”). The wife worked at H Pty Ltd until early 2015. Thereafter, the husband paid her $750 per week to meet household expenses. The structure of the husband’s business entities is vast and complex and involves a myriad of companies and trusts. I respectfully rely on, and adopt, the summary of the wife’s claim in the substantive proceedings as set out by Riethmuller J in Antoun & Antoun [2023] FedCFamC1F 129 at [13]–[68]. I now turn to the various interim applications, which will be dealt with in the order of submissions made during the hearing. THE WIFE’S APPLICATIONS PERTAINING TO MS BB (PROPOSED EIGHTH RESPONDENT) Before the court are two applications relevant to Ms BB. First, a purported Amended Application in a Proceeding filed on 7 October 2022 (notwithstanding the original application filed on 11 April 2022 was dismissed by paragraph 5 of orders made 14 June 2022). Second, an Application in a Proceeding dated 29 March 2023, and subsequently filed on 4 May 2023, which seeks to join Ms BB as the eighth respondent to the substantive proceedings and to restrain her from prosecuting proceedings in the New South Wales Supreme Court (the “SC proceedings”). The SC proceedings were commenced by Ms BB in early 2023 seeking specific performance to enforce a settlement reached in 2018 Supreme Court proceedings. Only the 29 March 2023 Application in a Proceeding is relevant, to the extent that the 7 October 2022 Application in a Proceeding only duplicates the relief of joinder sought. Documents relied upon The wife relied upon the following documents:(i)Amended Application in a Proceeding filed 7 October 2022 (but only as to Orders 2, 6, 8, 14-22 and 24-28); (ii)Amended Points of Claim filed 7 December 2022; (iii)Affidavit of the wife filed 16 February 2024;(iv)Consolidated affidavit of the wife sworn and filed 14 December 2022;(v)Exhibits to the wife’s affidavit sworn and filed 14 December 2022;(vi)Costs Notice filed 28 August 2023;(vii)Case Outline filed 28 August 2023;(viii)Documents tendered by counsel; and(ix)Reasons for judgment of the Honourable Justice Riethmuller dated 9 March 2023 in Antoun & Antoun [2023] FedCFamC1F 129 In opposition to the Application in a Proceeding filed by the wife on 29 March 2023, Ms BB relied upon the following documents:(i)Affidavit of Ms VV filed 16 November 2022 and Exhibit MVV-1 thereto;(ii)Affidavit of Ms VV filed 21 August 2023 and Exhibit MVV-2 thereto;(iii)Affidavit of Ms VV filed 22 February 2024 and the annexures thereto; and(iv)Written Submissions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Senior counsel for Ms G and the fourth to sixth respondents submitted the costs incurred by his clients, in accordance with the cost notice, were $372,773. The court should not make any order for the release of funds to the wife until the issues of costs claimed by all parties are determined.CONCLUSION After hearing submissions from all relevant parties, I prefer and accept the submission of the wife’s counsel, excluding as to quantum, and determine the net proceeds of sale, after payment of sale costs, apportionable outgoings and discharge of both mortgages encumbering the properties, should be distributed as to $250,000 to the wife as partial property settlement and the balance should be placed into a controlled monies account, as provided in the draft minute. In reaching my decision, I have had regard to all considerations raised in the submissions of all counsel, and in particular but not exclusively, to the following factors:·The submissions of the wife’s counsel as to whether it is appropriate to exercise my discretion;·There is an obvious imbalance in the capacity of the wife and husband to meet legal fees as demonstrated by the respective costs notices, where the wife has been unable to pay the majority of her costs, but the husband’s costs have been paid, albeit he asserts via loans;·A level playing field is in the interests of justice see: Watts J in Osferatu & Osferatu [2012] FamCA 408 and this would, at the very least, enable the wife to pay her lawyers to enable rectification of any defects in the manner her case has to date, been framed; ·The submissions of the wife’s counsel about the required second step, as to s 79(4) and s 75(2) factors, although brief, and note there was no attempt to address the relevant considerations by the husband’s counsel or senior counsel for the non-spouse parties. ·All respondents submitted the wife would be entitled to receive between $600,000 and $700,000, although the pool has yet to be determined and valued.·The amount of $250,000 is significantly less than the entitlement of the wife, as submitted by the respondents, and on any view, the wife would be entitled to that sum in a final division of property.·The sum of $250,000 strikes a balance between the competing claims to the proceeds of sale of the properties.·The costs submissions of all three senior counsel for the non-spouse parties, that all funds should be placed in trust pending the determination of possible costs claims by their respective clients: ·Are tantamount to seeking security for costs, in the absence of an application for same;·Do not seem to consider s 117(1) of the Act where the starting point is that each party to proceedings shall bear his or her own costs, rather than costs follow the cause. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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