BAINEY & BAINEY (No.2)

[2020] FCCA 1663

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAINEY & BAINEY (No.2) [2020] FCCA 1663

Catchwords:
FAMILY LAW – Property – marital relationship – supplementary reasons for judgment.

Cases cited:
Bainey & Bainey [2020] FCCA 1292
Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52

Applicant:

MS BAINEY

by her litigation guardian,
MR DRAKE

Respondent: MR BAINEY

File Number: MLC 9097 of 2017

Judgment of: Judge Riley

Hearing dates: 25 and 29 May and 2 June 2020

Date of last submission: 9 June 2020

Delivered at: Melbourne

Delivered on: 24 June 2020

REPRESENTATION

Advocate for the applicant: Mr Korfiatis

Solicitors for the applicant: Webb Korfiatis Family Law

Advocate for the respondent: Ms Campbell

Solicitors for the respondent: Forte Family Lawyers

ORDER BY CONSENT:

1. Order 5 made on 25 May 2020 be discharged.

ORDERS BY THE COURT:

1. The husband ensure that B Pty Ltd repay the wife the sum of $35,745 within 14 days.

2. Pending the sale of CC Street, Suburb D in the State of Victoria (“the property”), each party be restrained from encumbering or further encumbering the property.

3. Within 28 days, the wife vacate the property.

4. The wife leave the property in a neat and clean condition when she vacates it.

5. The wife be restrained from removing from the property:

   (a)from the back room:

   (i)the 65” LCD TV;

   (ii)the Playbar;

   (iii)the Sub;

   (iv)two Play 3’s; and

   (v)the Apple iPad Mini and Launch Port;

   (b)from the front room:

   (i)the 65” LCD TV;

   (ii)the Playbar;

   (iii)the Sub;

   (iv)two Play 1’s; and

   (v)the Apple iPad Mini and Launch Port;

   (c)from the gym:

   (i)the 50” LCD TV;

   (ii)the Playbar; and

   (iii)the Apple iPad Mini and Launch Port;

   (d)from the living and meals area, the Apple iPad Mini and Launch Port;

   (e)from the outdoor area:

   (i)the Playbar;

   (ii)the Apple iPad Mini and Launch Port;

   (iii)the Sub; and

   (iv)the 46” Plasma;

   (f)from the master bedroom:

   (i)the 46” LCD TV; and

   (ii)the Apple iPad Mini and Launch Port; and

   (g)from the office:

   (i)two Foxtel IQ2’s;

   (ii)the DVD Player;

   (iii)two Apple TV’s;

   (iv)the camera system;

   (v)the cable modem;

   (vi)the Blue Stream 8 x 8 matrix switcher; and

   (vii)the WD My Cloud media box 1TB,

   which are all part of the Smart System and which are to be sold with the property, and

   (h)the Dyson V8 vacuum cleaner; and

   (i)the water ski,

   which are to be the property of the husband.

6. Otherwise, the chattels in the property all be the property of the wife.

7. Upon the wife vacating the property, the wife discharge and indemnify the husband for all outstanding rates, utilities and other outgoings in relation to the former matrimonial home which were incurred during the period of 24 June 2017 to the date on which she vacates the property, and any arrears be deducted from her share of the proceeds of sale of the property.

8. After the wife vacates the property, the husband have the sole use and occupation of the property pending sale and continue to pay the mortgage, rates and insurance as they fall due.

9. Within 60 days of the wife vacating the property, the husband and the wife do all acts and things and execute all documents as are required to sell the property by public auction or such other means as the selling agent may advise.

10. The selling agent be as agreed between the parties and, failing agreement in writing within 14 days, be appointed by the president for the time being of the Real Estate Institute of Victoria.

11. The conveyancer be as agreed between the parties and, failing agreement in writing within 14 days, be appointed by the president for the time being of the Law Institute of Victoria.

12. The reserve price for the property be $1,800,000 or such other price as the parties may agree and, failing agreement within a time stipulated by the selling agent, as the selling agent may advise in writing.

13. The sale be on such terms and conditions as the parties may agree, and, failing agreement within a time stipulated by the selling agent, as the selling agent may advise in writing.

14. The parties have liberty to apply with respect to the terms and conditions of sale.

15. Prior to or at the settlement of the sale of the property, each party do all things necessary at that party’s expense to remove any caveat on the property lodged by or on behalf of that party or any creditor of that party.

16. The proceeds of sale of the property be applied:

    (a)firstly, in payment of the agent's commission and costs of sale;

    (b)secondly, to discharge the mortgage to Australia and New Zealand Banking Group Ltd (registered number ...);

    (c)thirdly, to discharge any caveat securing costs payable to the solicitors for either party, with the amount required for the discharge of the relevant caveat being treated as part of the relevant party’s share of the asset pool;

    (d)fourthly, to pay all legal costs and disbursements associated with the sale;

    (e)fifthly, to reimburse the husband for any expenses incurred to prepare the property for sale that the selling agent specifies in writing were reasonable and advisable;

    (f)sixthly, to pay all monies required to procure a withdrawal of caveat number ..., on the basis that those monies be deducted from the husband’s 60% of the asset pool; and

    (g)seventhly, as required to effect a division of the asset pool as to 40% to the wife and 60% to the husband, after taking into account the amounts that the parties have already received, or will receive pursuant to these orders.

ORDER BY CONSENT:

1. Any payment to be made to the wife pursuant to these orders be paid to the credit of the trust account of Webb Korfiatis Family Law Pty Ltd.

ORDERS BY THE COURT:

1. Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001, order 4 made on 25 May 2020 be discharged.

2. Contemporaneously with the settlement of the sale of the property, the wife pay A Pty Ltd the sum of $184,484.66 plus interest pursuant to the terms of settlement between the wife and A Pty Ltd.

3. The parties have liberty to apply in relation to the calculation of interest.

4. Save as provided herein, the wife forthwith relinquish all her rights and forego absolutely any past, present or future rights or other entitlements or interest, legal or equitable as a beneficiary of the M Pty Ltd Trust including without limiting the generality of same, any claim or right to claim any contingent, actual, vested or expected interest legal or equitable to any unpaid or other entitlements payable from the M Pty Ltd or the Trustee to the wife and, for this purpose, the wife sign a deed of release if required by the husband or the trustee of the M Pty Ltd as appointed from time to time at the expense of the person or entity requesting the deed of release.

5. Save as provided herein, the wife forthwith assign to the husband any entitlement to be paid any amount standing to the credit of the wife in the accounts of the M Pty Ltd as at the date of these orders and for this purpose, the wife sign all documents and do all things as may be required to assign to the husband any unpaid entitlements owed to the wife in the M Pty Ltd Family Trust, at the expense of the husband.

6. Contemporaneously with the settlement of the sale of the property, the husband indemnify the wife absolutely in relation to:

   (a)all the liabilities of the M Pty Ltd Family Trust, O Pty Ltd and any other entity with which the husband is or has been associated (“the husband’s entities”) and, without limiting the generality of the above, any existing and future liability for any loans, taxes or dues arising from the activities of the husband’s entities; and

   (b)any and all existing and future liabilities (whether referable to past, present or future events) howsoever arising by reason of any office, holding or interest in the husband’s entities, including but not limited to any current assessed or future taxation liabilities.

7. The husband be liable for and indemnify the wife for the debts in his name including but not limited to:

   (a)his ANZ Frequent Flyer Black Credit Card;

   (b)his QANTAS Premium Mastercard;

   (c)his NAB Visa card;

   (d)his loans from Mr XX; and

   (e)the wife’s debt to A Pty Ltd to the extent of $50,000 plus interest pursuant to the deed of settlement between the wife and A Pty Ltd.

8. As between the parties, the wife be solely liable for any outstanding or future school fees for her children.

9. The wife indemnify the husband, and keep him indemnified, in respect of any school fees that are now owing, or that may be owing in the future, on account of her children.

10. The wife be solely liable for and indemnify the husband for:

    (a)her Centrelink debt;

    (b)her legal fees to PBP Lawyers; and

    (c)her debt to A Pty Ltd in the sum of $184,484.66 plus interest pursuant to the terms of settlement between the wife and A Pty Ltd,

    and pay those debts from her 40% of the asset pool.

11. The husband retain for his sole benefit:

    (a)the Motor Vehicle 2 registration number ...;

    (b)monies in any bank accounts in his sole name;

    (c)all rewards and frequent flyer entitlements held in the husband’s sole name;

    (d)his Motorcycle K;

    (e)his Motorcycle WW;

    (f)his P Pty Ltd shares; and

    (g)his superannuation entitlements.

12. The wife retain for her sole benefit:

    (a)monies in any bank accounts in her sole name;

    (b)her H shares; and

    (c)her superannuation entitlements.

13. Each party release each other from any and all liability in respect of any debt or other claims alleged to be owed by one to the other.

14. Unless otherwise specified in these orders and save for the purposes of enforcing 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) in the possession of such party as at the date of these orders;

    (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

    (c)insurance policies remain the sole property of the owner named therein;

    (d)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; and

    (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

15. The asset pool be split 60:40 in the husband’s favour, on the basis that the wife indemnify the husband for her children’s school fees, all other debts lie where they fall, and the wife’s part-property settlements be included in her 40%.

16. The parties have liberty to apply in relation to the calculation of the division of the asset pool.

17. All applications be otherwise dismissed.

NOTATIONS

(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Bainey & Bainey (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9097 of 2017

MS BAINEY
by her litigation guardian,
MR DRAKE

Applicant

And

MR BAINEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are supplementary reasons for judgment. The principal reasons for judgment in this matter were given in Bainey & Bainey [2020] FCCA 1292 on 25 May 2020. On that date, orders were made in this matter as follows:

   1.The asset pool be split 60:40 in the husband’s favour, on the basis that the wife indemnify the husband for her children’s school fees, all other debts lie where they fall, and the wife’s part-property settlements be included in her 40%.

   2.As between the parties, the wife be solely liable for any outstanding school fees for her children.

   3.The wife indemnify the husband, and keep him indemnified, in respect of any school fees that are now owing, or that may be owing in the future, on account of her children.

   4.The wife, from any settlement in this proceeding, pay A Pty Ltd the sum of $184,484.66.

   5.The husband ensure that B Pty Ltd repay the wife the sum of $35,750 within 14 days.

   6.There be additional orders following the submissions of the parties.

2. The court could not make further orders at that time because neither party’s proposed orders contemplated the former matrimonial home being sold, but the principal reasons made it likely that the sale of the former matrimonial home would be necessary. Consequently, after delivering judgment, the court invited the parties to provide further proposed orders and submissions in support of their proposed orders.

3. It was hoped that, with the benefit of the findings in the principal reasons for judgment, the parties would be able to reach an agreed position on the way forward. They did agree that the former matrimonial home would have to be sold. However, in other respects, the parties were in heated disagreement, as they had been throughout the proceedings.

4. After a number of mentions, the parties each filed written submissions and proposed orders on 9 June 2020.

5. Although the parties were in substantial agreement on a number of issues, they were unable to provide to the court a consent minute in respect of any matters at all. The appalling relationship between the parties extended to their legal practitioners. The parties were unable to indicate to the court that they agreed on even the most uncontroversial matters.

Proposals

1. The wife’s proposed orders emailed to chambers on 9 June 2020 are as follows:

   1.The Husband and Wife forthwith do all acts and things and execute all documents required to sell the real property situate at and known as CC Street, Suburb D in the State of Victoria (“the property”) by public auction or such other means as the selling agent may advise.

   2.The selling agent be as agreed between the parties and failing agreement be appointed by the President for the time being of the Real Estate Institute of Victoria.

   3.The reserve price for the property be $1,800,000.00 or such other price as the parties may agree and otherwise on such terms and conditions as the parties may agree, and failing agreement as the selling agent may advise in writing.

   4.The parties have liberty to apply with respect to the terms and conditions of sale.

   5.The proceeds of sale of the property be paid as follows:-

   5.1Firstly to meet the costs, commissions and expenses of the sale;

   5.3Secondly to pay all monies required to discharge the mortgage secured by the property;

   5.3Thirdly to pay the sum of $1,002,708.00 to the Wife;

   5.4Fourthly to pay all monies required to procure a withdrawal of caveat Number ...;

   5.5Fourthly the balance to the Husband.

   Save that:-

   5.6In the event the property sells for more than $1,800,000.00 the parties share in the excess in the proportions of 60 per cent thereof to the Husband and 40 per cent to the Wife; and

   5.7In the event the property sells for less than $1,800,000.00 the parties bear the shortfall in the proportions of 60 per cent to the Husband and 40 per cent to the Wife.

   6.Pending settlement of the sale neither party further encumber the property.

   7.The Husband do all acts and things necessary to pay to the Wife the debt owed by B Pty Ltd in the sum of $35,745.00 within seven days of the date of this Order.

   8.Save as otherwise provided herein, the Wife forthwith relinquish all her rights and forego absolutely any past, present or future rights or other entitlements or interest, legal or equitable as a Beneficiary of the M Pty Ltd Trust including without limiting the generality of same, any claim or right to claim any contingent, actual, vested or expected interest legal or equitable to any unpaid or other entitlements payable from the M Pty Ltd Trust or the Trustee to the Wife.

   9.Save as otherwise provided herein the Wife forthwith assign to the Husband any entitlement to be paid any amount standing to the credit of the Wife in the accounts of the M Pty Ltd Trust as at the date of these Orders and that for this purpose the Wife sign all documents and do all things that may be required to assign to the Husband any unpaid entitlements owed to the Wife in the M Pty Ltd Family Trust at the expense of the Husband.

   10.The Husband be liable for and indemnify the Wife absolutely in relation to:-

   7.1All the liabilities of the M Pty Ltd Family Trust and O Pty Ltd and any other entity which the Wife is associated or has been a member or beneficiary and without limiting the generality of the above any existing and future liability for any loans, taxes or dues arising from the activities of the entities;

   11.The Husband retain his sole benefit:-

   8.1The Motor Vehicle 2 registration number ...;

   8.2Monies in any bank accounts in the Husband’s sole name;

   8.3All rewards and frequent flyer entitlements held in the Husband’s sole name;

   8.4His Motorcycle K;

   8.5His Motorcycle WW;

   8.6The P Pty Ltd shares;

   8.7Husband’s superannuation entitlements.

   12.The Wife retain to the exclusion of the Husband:-

   9.1Monies in any bank accounts in the Wife’s sole name;

   9.2Her H shares;

   9.3The benefit of the wife’s loan account in the B Pty Ltd;

   9.4The Wife’s superannuation entitlements.

   13.The Husband be liable for and indemnify the Wife for the debts in his name including but not limited to:-

   12.1ANZ Frequent Flyer Black Credit Card;

   12.2QANTAS Premium Mastercard;

   12.3NAB Visa card;

   12.4The Wife’s debt to A Pty Ltd to the extent of $50,000.00;

   12.5His loans from Mr XX.

   14.The Wife be solely liable for and indemnify the Husband for:-

   13.1The arrears of school fees and future school fees owed to VV School;

   13.2Centrelink overpayment;

   13.3Her legal fees to PBP Lawyers;

   13.4The sum of $184,484.66 to A Pty Ltd.

   15.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-

   11.1Each party be solely entitled to the exclusion of the other to all other property  (including  choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the Wife);

   11.2Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   11.3Insurance policies remain the sole property of the owner named therein;

   11.4Each 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;

   11.5Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

2. The husband’s proposed orders emailed to chambers on 9 June 2020 are as follows:

   1.The Husband ensure that B Pty Ltd repay the Wife the sum of $35,745 within 14 days.

   2.Contemporaneously with paragraph 1 of these Orders, the Wife vacate the property situate at CC Street, Suburb D, Victoria (“the property”) and thereafter the Husband have sole use and occupancy of the property, and continue to pay the mortgage, rates and insurance.

   3.That within 60 days of the date of these orders, the parties do all such acts and sign all documents as may be required to list the property for sale, with the Husband to have conduct of the sale, on the following terms (“the sale”):

   3.1.The reserve price for the property be $1,800,000.00 or such other price as the parties may agree and otherwise on such terms and conditions as the parties may agree, and failing agreement as the selling agent may advise in writing.

   3.2.Using Real Estate Agent DDD as real estate agents (“the agent”) and EEE Law Firm, Suburb FFF as conveyancers;

   3.3.By public auction on a date recommended by the agent or by such other means in accordance with the advice and recommendations of the agent;

   3.4.On an unconditional contract of sale providing for a settlement period of not more than 60 days, unless otherwise agreed between the parties in writing; and

   3.5.If the property is not sold by auction on or before the date the property is listed for auction, then the parties do all things reasonably required of them to obtain a completed sale and the settlement period in the contract of sale be no longer than 60 days unless otherwise agreed between the parties in writing.

   4.That at the settlement of the sale of the property the proceeds of sale be applied as follows:

   4.1.Firstly, in payment of the agent's commission and costs of sale;

   4.2.Secondly, to discharge the mortgage secured in favour of Australia and New Zealand Banking Group Ltd (registered number ...) and any other encumbrance affecting the property (excluding any encumbrance securing costs payable to the solicitors for either party);

   4.3.Thirdly, to pay all legal costs and disbursements associated with the sale;

   4.4.Fourthly, to reimburse the Husband for all expenses incurred to prepare the property for sale, save that any costs associated with repairing the Smart System be borne solely by the Wife;

   4.5.Fifthly, to discharge the Husband’s debt payable to Ms GGG and Mr XX in accordance with the Loan Agreement dated 25 July 2018 (secured against the property by caveat ...);

   4.6.Sixthly, an amount be paid to the Wife as required to effect a division of the non-superannuation property pool as to 40% to the Wife and 60% to the Husband, noting that the parties have already received or retain the property and liabilities set out in Annexure B.

   4.7.Lastly, the balance of the proceeds be paid to the Husband.

   5.That the parties have liberty to apply with respect to the terms and conditions of the sale.

   6.Contemporaneously with the operation of paragraph 4:

   6.1.The Wife pay A Pty Ltd the sum of $197,515.82 plus interest from 25 May 2020 to the date of payment.

   6.2.The Wife do all acts and things necessary at her expense to remove any caveat lodged on her behalf or on behalf of any creditor including any lawyers to secure their legal costs and disbursements prior to, or at the time of settlement of the sale.

   6.3.The Husband shall be liable for and indemnify the Wife absolutely in relation to:

   6.3.1.     All of the liabilities of the Husband’s entities, including and without limiting the generality of the above, any liability for any loans, taxes or duties howsoever arising from the activities of the company;

   6.3.2.     Any and all existing and future liabilities (whether referable to past, present or future events) howsoever arising by reason of any office holding or interest in the Husband’s entities, including but not limited to any current assessed or future taxation liabilities (save for any taxation arising from the A Pty Ltd money which was the subject of County Court proceedings numbered ...).

   6.4.The Wife shall:

   6.4.1.     Forthwith relinquish all of her rights and forego absolutely any past, present or future rights or other entitlements or interests legal or equitable as a beneficiary of the M Pty Ltd Trust and including without limiting the generality of the above any claim or right to claim any contingent, actual vested or expectant interest legal or equitable to any unpaid or other entitlements payable from the M Pty Ltd Trust or the trustee to the Wife and for this purpose the Wife shall sign a Deed of Release if required by the Husband or the trustee of the M Pty Ltd Trust as appointed from time to time at the expense of the person or entity requesting the Deed of Release;

   6.4.2.     Forthwith assign to the Husband any entitlement to be paid any amount standing to the credit of the Wife in the accounts of the M Pty Ltd Trust as at the date of these Orders and that for this purpose, the Wife shall sign all documents and do all things as may be required to assign to the Husband any unpaid entitlements owed to the Wife in the M Pty Ltd Family Trust, at the expense of the Husband;

   6.4.3.     Indemnify the Husband and keep him indemnified in respect of any school fees that are now owing, or that may be owing in the future, on account of her children;

   6.4.4.     Indemnify the Husband against any liability in relation to any taxation owing from the A Pty Ltd money which was the subject of County Court proceedings, numbered ....

   7.As between the parties the Wife be solely liable for any outstanding school fees for her children.

   8.Upon vacating the property, the Wife:

   8.1.Leave the property in a neat and clean condition;

   8.2.Be restrained from removing the items listed in Annexure A from the property, of which items 1 to 19 and 29 to 35 are all part of the “Smart House computer system with integrated TV, Music, Security System” (Smart System) listed in the Affidavit of Mr HHH of JJJ Valuations filed 22 February 2019 and taken into account in valuing the former matrimonial home at $1,800,000. They are to be sold with the property. The remainder of the items in Annexure A are to be retained by the Husband; and

   8.3.Discharge and indemnify the Husband for all outstanding rates, utilities and other outgoings in relation to the former matrimonial home which were incurred during the period of 24 June 2017 to the date in which she vacates the property, and any arrears be deducted from the amount payable to her under paragraph 4.6;

   9.Both parties be restrained from encumbering or further encumbering the property.

   10.Paragraphs 3 and 4 of the Court Orders of 31 May 2018 be discharged.

   11.If not sold beforehand, upon the sale of the Motor Vehicle 2 registration number ..., the Husband retain 100% of the net sale proceeds.

   12.That all the right, title and interest of the Wife (if any) be transferred to the Husband so that the Husband retain the following for his sole use and benefit to the exclusion of the Wife:

   12.1.Monies in any bank accounts in the Husband’s sole name;

   12.2.All rewards and frequent flyer entitlements held in the Husband’s sole name;

   12.3.His Motorcycle K;

   12.4.His Motorcycle WW;

   12.5.His KKK Bike;

   12.6.His Go-Kart;

   12.7.All shares and investments held in the Husband’s sole name; and

   12.8.The Husband’s superannuation entitlements.

   13.That all the right, title and interest of the Husband (if any) be transferred to the Wife so that the Wife retain the following for her sole use and benefit to the exclusion of the Husband:

   13.1.Monies in any bank accounts in the Wife’s sole name;

   13.2.All rewards and frequent flyer entitlements held in the Wife’s sole name;

   13.3.All shares and investments held in the Wife’s sole name; and

   13.4.The Wife’s superannuation entitlements.

   14.That unless otherwise specified in the orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   14.1.Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;

   14.2.Each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;

   14.3.Insurance policies remain the sole property of the owner named therein;

   14.4.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;

   14.5.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and

   14.6.Each party release each other from any and all liability in respect of any debt or other claims alleged to be owed by one to the other.

   15.All applications otherwise be dismissed.

ANNEXURE A

ITEMS TO REMAIN IN CC STREET, SUBURB D

BACK ROOM

MASTER BEDROOM

1.   65” LCD TV

2.     Playbar

3.     Sub

4.     2x Play 3’s

5.     Apple iPad Mini and Launch Port (which controls home automation)

18.  46” LCD TV

19.  Apple iPad Mini and Launch Port

20.  Silver Coins ($4500)

FRONT ROOM

GARAGE

6.    65” LCD TV

7.    Playbar

8.    Sub

9.    2x Play 1’s

10.  Apple iPad Mini and Launch Port

21.  Go-Kart and Stand

GYM

BACK SHED

11.  50” LCD TV

12.  Playbar

13.  Apple iPad Mini and Launch Port

22.  Mower

23.  Whipper Snipper

24.  Blower

25.  Mountain Bike

26.  Stereo

27.  Vinyl record collection

28.  2x single bed matresses

LIVING AND MEALS AREA

OFFICE

14.  Apple iPad Mini and Launch Port

29.  2x Foxtel IQ2’s

30.  DVD Player

31.  2x Apple TV’s

32.  Camera System

33.  Cable Modem

34.  Blue Stream 8 x 8 Matrix Switcher

35.  WD My Cloud Media Box 1TB

36.  4x office chairs

OUTDOOR AREA

15.  Playbar

16.  Sub

17.  46” Plasma

Bainey  – MLC9097/2017 – ANNEXURE B
Table of assets and liabilities from judgment of Judge Riley delivered 25 May 2020
Finding as to value	Para ref	Findings as to assets and liabilities to be adjusted between the parties
1.	CC Street, Suburb D	$1,800,000	Para 28	$1,537,201
2.	Mortgage	($262,799)	Para 29	Included in item 1
3.	Wife’s assets ·    Shares in H ·    Bank accs ·    Debt owed by B Pty Ltd	·    $9,552 ·    $879 ·    $35,745	Para 31 a and b	$46,175
4.	Wife’s liabilities ·    A Pty Ltd as at 5/8/2019 (stated in judgment as at 10/12/2019) ·    VV School Centrelink ·    PBP Lawyers	·    ($184,484.66) ·    ($35,000) ·    ($22,000) ·    ($11,122.22)	Paras 41, 55-56, 63, 145 - not in pool	Nil
5.	Wife’s part property settlements	$156,275	Para 119	$156,275
6.	Wife’s superannuation	$28,881	Para 65	$28,881
7.	Husband’s assets ·    Motor Vehicle 2 ·    Motorcycle K ·    Motorcycle WWW ·    P Pty Ltd ·    NAB	·       $55,000 ·       $22,000 ·       $6,500 ·       $2,500 ·       $405	Para 66	$1,269,405 Less $35,750 as agreed between the parties =$1,233,655
8.	Bainey Group	$1,147,275.	Para 73	Included at item 7
9.	Husband’s ANZ Black creditcard	($17,768)	Paras 74, 76	($17,768)
10.	Husband’s debt to A Pty Ltd	($50,000)	Paras 74, 76	($50,000)
11.	Husband’s loan from Mr XX	($40,000)	Paras 74, 76	($40,000)
12.	NAB visa card Qantas creditcard	($9,575) ($17,322)	Paras 74, 76 – not in pool	NIL
13.	Husband’s superannuation	$163,378	Para 77	$163,378
Total	$3,057,797

Restraint on further encumbering the property

1. The parties proposed orders that were substantially the same that, pending the settlement of the sale of CC Street, Suburb D, (“the property”), both of them should be restrained from encumbering or further encumbering the property. There will be an order to that effect.

M Pty Ltd Trust

1. The parties proposed orders that were substantially the same that:

   The wife forthwith relinquish all her rights and forego absolutely any past, present or future rights or other entitlements or interest, legal or equitable as a beneficiary of the M Pty Ltd Trust including without limiting the generality of same, any claim or right to claim any contingent, actual, vested or expected interest legal or equitable to any unpaid or other entitlements payable from the M Pty Ltd Trust or the trustee to the wife.

2. However, the wife submitted that it should be prefaced with the words:

   Save as otherwise provided herein.

3. There was nothing to the contrary provided for in the orders. However, the wife’s additional words will do no harm, so will be included in the order.

4. The husband proposed that there should be additional words as follows:

   and for this purpose the Wife shall sign a Deed of Release if required by the Husband or the trustee of the M Pty Ltd Trust as appointed from time to time at the expense of the person or entity requesting the Deed of Release.

5. The husband’s proposed additional words are probably unnecessary, but they will cause no harm, so will be included in the order.

6. Except that the wife submitted that it should be prefaced with the words, Save as provided herein, the parties agreed that there should be an order that:

   The wife forthwith assign to the husband any entitlement to be paid any amount standing to the credit of the wife in the accounts of the M Pty Ltd Trust as at the date of these orders and that for this purpose, the wife shall sign all documents and do all things as may be required to assign to the husband any unpaid entitlements owed to the wife in the M Pty Ltd Family Trust, at the expense of the husband.

7. Again, there was nothing to the contrary included in the orders, but, as the wife’s addition will do no harm, it will be included in the order.

The husband’s indemnity of the wife

1. The wife proposed an order that:

   The Husband be liable for and indemnify the Wife absolutely in relation to:-

   7.1All the liabilities of the M Pty Ltd Family Trust and O Pty Ltd and any other entity which the Wife is associated or has been a member or beneficiary and without limiting the generality of the above any existing and future liability for any loans, taxes or dues arising from the activities of the entities;

2. The husband proposed an order that:

   Contemporaneously with the operation of paragraph 4 [which concerned the sale of the property]:

   …

   6.3.The Husband shall be liable for and indemnify the Wife absolutely in relation to:

   6.3.1.     All of the liabilities of the Husband’s entities, including and without limiting the generality of the above, any liability for any loans, taxes or duties howsoever arising from the activities of the company;

   6.3.2.     Any and all existing and future liabilities (whether referable to past, present or future events) howsoever arising by reason of any office holding or interest in the Husband’s entities, including but not limited to any current assessed or future taxation liabilities (save for any taxation arising from the A Pty Ltd money which was the subject of County Court proceedings numbered ...).

3. Both sets of proposed orders are defective. The wife’s proposed orders refer to:

   … any other entity which the Wife is associated or has been a member or beneficiary …

4. As expressed, that would include entities that were completely unrelated to the husband.

5. The husband’s proposed orders referred to the Husband’s entities, but did not define them. The husband also sought to exclude any taxation liability arising from the money to be repaid to A Pty Ltd. The husband did not explain why there should be such an exclusion. The wife pointed out in her written submissions that the husband had not raised this issue at trial and should not be permitted to do so now. I accept that submission, in the absence of a formal application to reopen the husband’s case.

6. In any event, I do not see why there should be such an exclusion. As the wife points out, it is difficult to see how there would be a taxation liability in respect of that repayment. A Pty Ltd was required to pay tax on the income it earned, which would have included the money that the wife took from it. When the money is repaid, it will not be income as such, but the repayment of a debt. I do not accept that there is any need for the exclusion.

7. The husband also sought a separate order that the wife indemnify him in relation to any taxation liability in respect of the monies to be repaid to A Pty Ltd. However, as discussed, I do not accept that order is necessary.

8. In other respects, the parties’ proposed orders are substantially the same. Consequently, there will be an order that:

   Contemporaneously with the settlement of the sale of the property, the husband indemnify the wife absolutely in relation to:

   a.all the liabilities of the M Pty Ltd Family Trust, O Pty Ltd and any other entity with which the husband is or has been associated (“the husband’s entities”) and, without limiting the generality of the above, any existing and future liability for any loans, taxes or dues arising from the activities of the husband’s entities; and

   b.any and all existing and future liabilities (whether referable to past, present or future events) howsoever arising by reason of any office, holding or interest in the husband’s entities, including but not limited to any current assessed or future taxation liabilities.

9. The wife also proposed an order that:

   13.The Husband be liable for and indemnify the Wife for the debts in his name including but not limited to:-

   12.1ANZ Frequent Flyer Black Credit Card;

   12.2.QANTAS Premium Mastercard;

   12.3NAB Visa card;

   12.4The wife’s debt to A Pty Ltd Pty Ltd to the extent of $50,000.00; and

   12.5His loans from Mr XX.

10. The husband did not expressly resist an order in relation to those indemnities and that order will be made. However, as discussed below, the indemnity for the debt to A Pty Ltd of $50,000 should also include any interest referable to that $50,000. The husband also proposed that his debt to Mr XX be paid from the proceeds of the sale of the property prior to the division of the balance. As discussed below, that order is not consistent with the orders made on 25 May 2020 and will not be made.

11. The wife also sought an order that:

    14.The Wife be solely liable for and indemnify the Husband for:-

    13.1The arrears of school fees and future school fees owed to VV School;

    13.2Centrelink overpayment;

    13.3Her legal fees to PBP Lawyers; and

    13.4The sum of $184,484.66 to A Pty Ltd Pty Ltd.

12. The court made orders on 25 May 2020 that:

    1.The asset pool be split 60:40 in the husband’s favour, on the basis that the wife indemnify the husband for her children’s school fees, all other debts lie where they fall, and the wife’s part-property settlements be included in her 40%.

    2.As between the parties, the wife be solely liable for any outstanding school fees for her children.

    3.The wife indemnify the husband, and keep him indemnified, in respect of any school fees that are now owing, or that may be owing in the future, on account of her children.

    4.The wife, from any settlement in this proceeding, pay A Pty Ltd the sum of $184,484.66.

13. Orders 2 and 3 made on 25 May 2020 state the position in relation to the school fees more clearly than the wife’s proposal. Strictly speaking, it is unnecessary to restate those orders. However, it is convenient to have all of the orders in the one document, so I will restate them in the present orders.

14. In view of order 1 made on 25 May 2020, it is probably unnecessary to make specific orders about the wife’s Centrelink debt or her debt to PBP Lawyers. However, as it will be convenient to put all of the orders in one document, and from an abundance of caution, I will make orders as proposed by the wife in relation to those debts.

15. In relation to the wife’s debt to A Pty Ltd, as discussed below, the wife also owes interest pursuant to the terms of settlement. It is therefore necessary to order that the wife indemnify the husband in respect of the debt and interest.

The wife’s loan to B Pty Ltd

1. The parties were in agreement that there was a typographical error in order 5 made on 25 May 2020, in that it required that:

   The husband ensure that B Pty Ltd repay the wife the sum of $35,750 within 14 days.

   when it should have required the repayment of $35,745.

2. However, the wife proposed that the payment to her occur within seven days. I see no reason to change the time frame. Consequently, there will be an order by consent that order 5 of the orders made on 25 May 2020 be discharged, and an order by the court that:

   The husband ensure that B Pty Ltd repay the wife the sum of $35,745 within 14 days.

Items to be kept by the parties

1. The parties were in substantial agreement that the husband should retain for his sole benefit:

   a)the Motor Vehicle 2 registration number ...;

   b)monies in any bank accounts in the husband’s sole name;

   c)all rewards and frequent flyer entitlements held in the husband’s sole name;

   d)his Motorcycle K;

   e)his Motorcycle WW;

   f)the P Pty Ltd shares; and

   g)his superannuation entitlements.

2. However, in addition, the husband submitted that he should also keep for his sole benefit:

   a)his KKK Bike; and

   b)his Go-Kart.

3. These additional items were not dealt with in the trial. In the absence of a formal application by the husband to re-open his case, it is not appropriate to deal with the additional items now. The orders will include the matters in respect of which the parties were in substantial agreement, including items discussed below in connection with the sale of the property.

4. The parties were also in substantial agreement that the wife should retain for her sole benefit:

   a)monies in any bank accounts in the wife’s sole name;

   b)her H shares; and

   c)her superannuation entitlements.

5. There will be an order to that effect. In addition, the wife argued that she should retain the benefit of her loan account with B Pty Ltd. The parties agreed that there be orders that the amount of the loan account be paid to the wife. It is implicit that she be able to retain it for her sole benefit. It is unnecessary to make a further order to that effect.

6. The husband submitted that the wife should retain for her sole benefit all rewards and frequent flyer points in her sole name. It was not suggested during the trial that the wife had any rewards or frequent flyer points. Consequently, the orders will only deal with the three items mentioned above.

Discharge of interim orders

1. The husband also proposed that there be orders discharging orders 3 and 4 made on 31 May 2018. Those orders concerned the sale of the Motor Vehicle 2 and were not complied with. They were interim orders. Consequently, it is strictly speaking unnecessary to discharge them as they are subsumed in the final orders.

Catch-all orders

1. The parties were in substantial agreement that there should be the usual catch-all orders as follows:

   Unless otherwise specified in these orders and save for the purposes of enforcing 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) in the possession of such party as at the date of these orders;

   b.each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   c.insurance policies remain the sole property of the owner named therein;

   e.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; and

   f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

2. However, the wife submitted that there should also be an order that the furniture, personal possessions, and like chattels in the real property be deemed to be in her possession. This is discussed further below, but there will be an order substantially as sought by the wife.

3. The husband also argued that there should be an order that:

   Each party release each other from any and all liability in respect of any debt or other claims alleged to be owed by one to the other.

   That order is probably unnecessary, but it will do no harm, so will be made.

4. The husband also submitted that there should be an order that:

   All applications otherwise be dismissed.

5. That proposed order is obviously uncontroversial and will be made.

The sale of the property

1. As mentioned above, the parties agreed that the property should be sold. However, the wife’s proposal assumed that she would remain in possession of the property until settlement. The husband submitted that:

   a)the wife should vacate the property upon the payment to the wife of the $35,745 from B Pty Ltd;

   b)he should thereafter have the sole use and occupation of the property; and

   c)he should have the conduct of the sale.

2. The wife argued that:

   1.On any view the Wife will receive the bulk of the net proceedings of sale (approximately 66 per cent thereof);

   2.The Wife, and her daughter have been in occupation of the property since separation;

   3.It is the Wife’s proposal that the property be sold forthwith. The Husband seeks to delay the sale by a further 60 days;

   4.The Husband is in receipt of a substantial income derived from the business interests. The Wife has been assessed by the Department of Social Security Centrelink as being permanently and totally disabled and has no independent stream of income.;

   5.The Husband has deposed to paying no rent for his current accommodation. Whilst not agitated during the trial, the Husband has since proposed that the Wife meet any interim accommodation costs from capital sums due to her pursuant to the Reasons for Judgement.

   If the Husband's proposal is accepted, noting that it arises subsequent to the delivery of Reasons for Judgement, then the Wife's capital monetary receipts from the Judgement will be reduced by the monies she is required to expend on alternate accommodation including additional moving costs (assuming the Wife only has to move once if she remains in the home pending sale), and rental expenses pending receipt of her capital sum, whereas if the property is sold forthwith and the Wife remains in occupation until settlement of the sale, the Wife will be in a position where she can enter the market during the sale period and buy suitable accommodation from her settlement proceeds when the sale of the home is settled without the need to rent.

   Though not argued in the trial the Husband now asserts that by assuming immediate occupation of the property he can improve the property and prepare it for sale in the hope it will achieve a higher price. There was no evidence led by the Husband to support that assertion. The matter is not addressed in the Reasons for Judgement. There is a high degree of distrust between the parties. The Husband is unclear as to what works he proposes be undertaken to the property.

   The effect of Husband's proposal is as follows:

   Whilst the Husband immediately receives the substantive part of his award (being the Bainey Group, his superannuation, the Motor Vehicle 2 and associated motor vehicles), his proposal is that there be a further delay in the Wife receiving her entitlements (which are derived almost entirely from the sale of the CC Street, Suburb D property), whilst the Wife has to draw down on her award to house herself pending receipt of her entitlements, and whilst being required to deliver up sole use and occupancy of the property pending its sale.

   In summary the Husband's proposal is a monetary penalty on the Wife. Any delay in the sale of the property has the effect of eroding the Wife's entitlements and increasing the Husband's entitlements pursuant to the Judgement. That is because the debt to A Pty Ltd continues to accrue which has the twofold effect of decreasing the Wife's receipts from sale of the property and increasing the value of the Husband's business interests (as the Husband's entities own 50 per cent of A Pty Ltd).

   It is respectfully submitted that the home should be sold immediately, the status quo wherein the wife remains in occupation pending settlement of the sale should remain to give efficacy to Your Honour's determination.

   That being said the Wife is content for the Husband to inspect the property in the company of an agreed selling agent at any time and if the agent recommends that works be undertaken, arrange for contractors to provide quotes to be submitted to the Wife for approval and to afford her an opportunity to get alternate quotes.

1. The husband argued that:

   11.It is submitted that an Order should be made which requires the Wife to vacate the property within 14 days to enable the Husband to prepare it for sale and sell it in an orderly fashion.

   12.The Wife has had the benefit of living in the property on a rent free basis for in excess of three years. As detailed in paragraph 114 of the Judgment, “the husband’s commitment to pay the mortgage on the former family home has been of considerable benefit to the wife.”

   13.The Husband proposes to occupy the property whilst preparing it for sale. As detailed in paragraph 143 of the Judgment, “the husband has been living in much less comfortable circumstances, at his own expense” since the date of separation. This was despite the fact that the Husband continued to pay the mortgage repayments on the property.

   14.During his occupation, the Husband will continue to pay the mortgage repayments and will pay rates and insurance premiums (excluding amounts which the Wife was required to pay during the period that she lived at the property).

   15.On the basis that the Wife receives the sum of $35,745 from B Pty Ltd within 14 days from the date that the Orders are made, the Wife will have sufficient funds to re-house herself.

   16.The Husband is in a far better position than the Wife to prepare the property for sale and is able to access contacts in the trade industry to perform work at a competitive rate and/or perform some of the works himself (provided that a registered tradesperson is not required to complete such works).

   17.There is no evidence that the Wife has the capacity to obtain quotations and organise the necessary work. In fact her own evidence is to the contrary, including the necessity for a Case Guardian, adjournments of the trial while she was in psychiatric hospital and “difficulty processing complex information” (paragraph 121c of the Judgment).

   18.It is submitted that the Husband is unable to perform the work whilst the Wife continues to live in the home due to:

   18.1The Husband’s well-founded concern that the Wife may make further false allegations against him and/or his associates who may be working on the property; and

   18.2The Husband’s concerns are based on the fact that the Wife has made false allegations against him in the past, as detailed in paragraph 77.6 of the Husband’s Trial Affidavit affirmed on 22 July 2019, including allegations that the Husband threated to kill the Wife and sexually assaulted her daughters. She also alleged that he breached the intervention order when it was in fact the Wife who had sent approximately 224 emails to the Husband compared to 4 sent by the Husband.

   18.3Any arrangement whereby the Husband organises and attends to the work only accompanied by a third party, such as the estate agent is impractical, and the Husband and/or his associates will not be protected from false allegations being made to the police. Such an arrangement will also slow the progress of preparing the property for sale.

   19.The Husband is concerned that the Wife has not ensured that the house has been maintained in a reasonable condition in the 3 years in which she has lived in it post- separation. She was required by paragraph 1 of the Orders made by consent on 18 September 2017 to “keep the home in good order and repair”.

   20.There is a past documented history of the Wife not maintaining the property and the Motor Vehicle 2:

   20.1The broken window detailed in page 11 of the JJJ Valuations Report valuation report by JJJ Valuations dated 10 January 2019, annexed to the Affidavit of Mr HHH, affirmed and filed on 22 February 2019 (JJJ Valuations Report), was only repaired by the Wife after it was brought up in Court over 6 months after the damage was done at a party held by her children.

   20.2There were other repairs required to be done according to the JJJ Valuations Report, and it can safely be assumed that in the approximately 17 months since the property was inspected, that the Wife has not made these repairs and that the house has further deteriorated through the Wife doing no repairs or maintenance of the property, despite her court-ordered obligation to do so.

   20.3Motor Vehicle 2, which the Wife had the responsibility of selling pursuant to paragraph 3 (a) of the Orders made on 31May 2018, was damaged and not in saleable condition when returned to the Husband for him to sell, needed $4,970 of repairs (at the discounted rate the Husband was able to obtain) before it could be placed on the market for sale. See paragraph 64 of the Husband’s Trial Affidavit filed 23 July 2019.

   20.4The Wife had sole control of the Motor Vehicle 2 pending its sale pursuant to the Orders made on 31 May 2018 but drove it unregistered, necessitating the Husband paying it. See paragraph 19 of the Husband’s Outline of Case filed 7 August 2019 and the Wife’s cross-examination at Trial.

   21.The Husband is concerned that the Wife may not vacate the property when she is required to do so and that such delay may be caused by the factors which led to the delay of the Final Hearing and during the Final Hearing. It is submitted that an Order requiring the Wife to vacate the property within 14 days of the Orders being made will mean that the settlement of the sale pursuant to a contact of Sale will not be delayed by the Wife failing to vacate the property.

   22.Her Honour has made findings as to the Wife acting with self-help (paragraph 53 of the Judgment), having “a cavalier attitude to other people’s money, and a misplaced sense of entitlement” (paragraph 54) and demonstrated “an entitled attitude, and a tendency to blame others for problems of her own making” (paragraph 57). In the circumstances, and given the history of the Wife’s conduct in these proceedings, the Wife has the potential to play havoc with the orderly sale of the property if she is left in occupation.

   23.The findings in paragraph 22 do not solely relate to this relationship, as the Wife also exercised self-help and took a car which did not belong to her from her previous relationship. See paragraph 13 of the Husband’s Trial Affidavit filed 23 July 2019 and the Wife’s cross- examination at trial.

   24.Her Honour has taken judicial notice of the COVID-19 pandemic in paragraph 138 of the Judgment as to the Wife’s employment prospects in the current labour market. Equally, Her Honour can take judicial notice of the uncertainty of the real estate market in Melbourne since the advent of the COVID-19 pandemic. The valuation in the JJJ Valuations report was as at 10 January 2019. The parties need to take all necessary steps to ensure that the sale price is maximised so they can both re-house themselves.

   25.Her Honour can also take judicial notice of the impact of the COVID-19 pandemic on car usage, and the likelihood that the Husband’s financial position has deteriorated and his business interests fallen in value since the trial as his business is dependent upon car usage. He is likely to have less capacity to continue to pay the mortgage on the property and his own expenses, as well as meet the expenses to prepare the property for sale. The parties agree that he has trade contacts who can assist him to do this work at a cost-effective price for the parties.

2. In my view, it is preferable for the wife to vacate the property and for the husband to have the sole use and occupation of the property pending sale and continue to pay the mortgage, rates and insurance as they fall due and to be primarily responsible for the sale of the property. This is because:

   a)on the wife’s own admission, she required a litigation guardian to assist her with these proceedings, because she is unable to process complex information;

   b)selling a property is stressful; the wife was admitted to a psychiatric hospital on a number of occasions last year; it is reasonably foreseeable that the process of selling the property will exacerbate the wife’s difficulties, which may delay the sale;

   c)the wife has a history of not doing the right thing and may deliberately sabotage or otherwise delay the sale of the property;

   d)while the wife claims that her proposal would avoid a delay in the sale of the property, the wife being in possession of the property is more likely to result in a delay in the sale than the husband being in possession of the property; and

   e)the husband is better suited to preparing the property for sale and achieving the best sale price.

3. However, contrary to the husband’s proposal, I do not consider that the wife should have to vacate the property at the same time as she receives the $35,745 from B Pty Ltd, which will be in 14 days. It will obviously take a little while for the wife to find alternative accommodation. Presumably, the wife will find rental accommodation. While the wife says that she will be obliged to utilise capital for that purpose, that may be a blessing in disguise, given the uncertainty in the COVID-19 property market. In my view, the wife should be given a further 14 days to vacate the property. There will be orders to that effect.

4. In relation to the payment to the wife from B Pty Ltd, I note that the terms of settlement between the wife and A Pty Ltd require the wife to repay A Pty Ltd immediately upon receipt of funds in the resolution of this proceeding. The parties agreed that obligation extended to the $35,745. However, B Pty Ltd sent an email to the husband’s solicitors, which was an attachment to the husband’s submissions filed on 9 June 2020. In the email, the solicitors said that A Pty Ltd would waive immediate compliance with the wife’s obligation to pay it the $37,745 provided that the wife vacated the property.  Pursuant to the orders, that will happen.

5. The husband sought an order that, upon vacating the property, the wife leave it in a neat and clean condition. That is obviously a reasonable and sensible proposal and an order to that effect will be made.

6. The parties were in substantial agreement that the property should be sold by public auction or by such other means as the selling agent may advise. There will be an order to that effect.

7. The wife argued that the parties should do all things necessary to sell the property forthwith, while the husband said that the parties should do all things necessary to list the property for sale within 60 days. Given that the wife will be vacating the property in 28 days, and given that the husband anticipates some remedial work being undertaken prior to the sale, I consider that the property should be listed for sale within 60 days of the wife vacating the property.

8. The husband sought orders for a particular real estate agent and a particular conveyancer to be utilised, on the basis that the agent was an established agent in the area. The wife proposed that:

   The selling agent be as agreed between the parties and failing agreement be appointed by the president for the time being of the Real Estate Institute of Victoria.

9. In my view, the wife’s proposed order is preferable, provided that a time limit of 14 days is imposed on the period for the parties to agree or not. The same applies to the conveyancer. This will give the wife a reasonable amount of input into the process, but, if the parties cannot agree in a reasonable time, the matter will be taken out of their hands. In general, and for the same reason, I do not consider that the husband should have the sole conduct of the sale of the property.

10. The parties were in substantial agreement that:

    The reserve price for the property be $1,800,000.00 or such other price as the parties may agree and otherwise on such terms and conditions as the parties may agree, and failing agreement as the selling agent may advise in writing.

11. Orders along those lines will be made but, from an abundance of caution, I will add provision for a time limit to be imposed by the selling agent.

12. The parties also proposed that:

    The parties have liberty to apply with respect to the terms and conditions of sale.

13. That order is probably unnecessary because, if the parties do not agree on the terms and conditions of sale, the selling agent will decide for them. However, from an abundance of caution, and in case the selling agent is unable for some reason to decide the matter, I will include that order.

14. The husband also proposed a specific order that the property be sold:

    On an unconditional contract of sale providing for a settlement period of not more than 60 days, unless otherwise agreed between the parties in writing.

15. However, that order is unnecessary as it is covered by the previous order dealing with the terms and conditions of sale.

16. The husband also proposed a specific order that:

    If the property is not sold by auction on or before the date the property is listed for auction, then the parties do all things reasonably required of them to obtain a completed sale and the settlement period in the contract of sale be no longer than 60 days unless otherwise agreed between the parties in writing.

17. That order is also unnecessary as the issue is covered by a previous order.

Proceeds of sale

1. The parties did not agree how the proceeds of the sale of the property should be dealt with. The wife proposed that the proceeds of sale be applied firstly to:

   meet the costs, commissions and expenses of the sale,

   while the husband proposed that the proceeds be applied firstly to:

   payment of the agent's commission and costs of sale.

2. The reason for the difference is that the husband had different proposed orders for expenses associated with the sale, such as his preparation of the property for sale and legal costs. In my view, the husband’s proposal is more conventional, and better suits the circumstances of this case. There will be an order accordingly.

3. The wife proposed that the proceeds of sale be applied secondly to:

   to pay all monies required to discharge the mortgage secured by the property,

   while the husband proposed that the proceeds be applied secondly to:

   discharge the mortgage secured in favour of Australia and New Zealand Banking Group Ltd (registered number ...) and any other encumbrance affecting the property (excluding any encumbrance securing costs payable to the solicitors for either party).

4. Obviously, mortgage number ... must be discharged in priority at settlement. No other mortgage was disclosed during the trial. However, there may be caveats lodged by the solicitors for the parties. If so, those caveats must be discharged at settlement, to enable the settlement to proceed, on the basis that the amount required to remove each caveat be counted as part of the relevant party’s settlement sum. There will be orders requiring the discharge of the mortgage and caveats.

5. The wife then sought that there be an order for the payment of the sum of $1,002,708.00 to the wife, although that was on the provisos that:

   5.6In the event the property sells for more than $1,800,000.00 the parties share in the excess in the proportions of 60 per cent thereof to the Husband and 40 per cent to the Wife; and

   5.7In the event the property sells for less than $1,800,000.00 the parties bear the shortfall in the proportions of 60 per cent to the Husband and 40 per cent to the Wife.

6. Given that it is unknown what the property will sell for, it is premature to specify any particular amount to be payable to the wife.

7. The husband sought that the proceeds of sale next be applied to:

   all legal costs and disbursements associated with the sale.

8. The wife did not specifically resist that order. It seems to me to be sensible. The parties should both contribute to the legal costs and expenses of the sale.

9. The husband then sought that the proceeds of sale be applied:

   to reimburse the husband for all expenses incurred to prepare the property for sale, save that any costs associated with repairing the Smart System be borne solely by the wife.

10. However, I consider that the husband should only be reimbursed for the expenses of preparing the house for sale that the selling agent specifies in writing were reasonable and advisable, including in relation to the Smart System.  There will be orders to that effect.  There was no evidence at the trial about any damage to the Smart System or why the wife should be solely liable for repairs to it. 

11. The wife sought an order that the proceeds of sale then be applied:

    to pay all monies required to procure a withdrawal of caveat number ....

12. The husband’s proposal in relation to this matter was that the proceeds of sale then be applied:

    to discharge the husband’s debt payable to Ms GGG and Mr XX in accordance with the Loan Agreement dated 25 July 2018 (secured against the property by caveat ...).

13. However, that proposal is not consistent with the original order made in this matter on 25 May 2020 that:

    The asset pool be split 60:40 in the husband’s favour, on the basis that the wife indemnify the husband for her children’s school fees, all other debts lie where they fall, and the wife’s part-property settlements be included in her 40%.

14. What I meant by that was that each party pay any debt owed by that party, except the school fees, for which the husband may have been jointly liable. Consequently, the husband’s debt, which is secured by caveat ..., is to be borne by him alone, and is to come out of his 60% of the asset pool.

15. The wife then proposed that the balance be paid to the husband, whereas the husband then proposed that an amount be paid to the wife as required to effect a division of the non-superannuation property pool as to 40% to the wife and 60% to the husband, noting that the parties have already received or retain the property and liabilities set out in Annexure B.

16. As noted by the wife, the orders made on 25 May 2020 provided for the asset pool inclusive of superannuation to be split 60:40. The appropriate order, which will be made, is that the balance of the proceeds of sale be applied:

    as required to effect a division of the asset pool as to 40% to the wife and 60% to the husband, after taking into account the amounts that the parties have already received, or will receive pursuant to these orders.

17. The husband then sought an order that, contemporaneously with the settlement of the sale of the property:

    the Wife pay A Pty Ltd Pty Ltd the sum of $197,515.82 plus interest from 25 May 2020 to the date of payment.

18. The orders pronounced on 25 May 2020 included an order that:

    The wife, from any settlement in this proceeding, pay A Pty Ltd the sum of $184,484.66.

19. There was no mention of any interest in that order, perhaps because the husband’s closing submissions did not mention the issue of interest and it was not agitated at trial. However, the email from A Pty Ltd’s solicitors indicated that, pursuant to the terms of settlement, interest was payable at the rate of 10% per annum or $44.32 per day on the total debt. Also, the table of assets, liabilities, contributions and future needs submitted by the parties (“the table”) said in a footnote that interest was payable on the wife’s debt to A Pty Ltd.

20. The wife said in her post-judgment written submissions that the claim for interest from the wife, if allowed, should not include the $50,000 that the husband owes A Pty Ltd. That must be correct.

21. The figure of $44.32 per day does not appear to take account of the fact that the husband is required to pay $50,000 of the debt, and, arguably, the interest on that amount. 

22. In my view, it is appropriate to correct the order made on 25 May 2020 under the slip rule so as to include interest. The slip rule extends to omissions by the court which resulted from omissions by counsel. There is some uncertainty about the total amount that will be payable by way of interest, so there will be liberty to apply on that issue.

Additional chattels

1. The husband also sought an order that, upon vacating the property, the wife:

   be restrained from removing the items listed in Annexure A from the property, of which items 1 to 19 and 29 to 35 are all part of the “Smart House computer system with integrated TV, Music, Security System” (Smart System) listed in the Affidavit of Mr HHH of JJJ Valuations filed 22 February 2019 and taken into account in valuing the former matrimonial home at $1,800,000. They are to be sold with the property. The remainder of the items in Annexure A are to be retained by the husband.

1. Annexure A is set out above.

2. In his written submissions on this issue, the husband said:

   26.It is submitted that specific Orders are required to make it clear to the Wife what she must leave in the property, and particularly the fixtures and fittings to be sold with the property.

   27.The Husband is concerned that the Wife not vacate the property without causing more damage and without removing fixtures and fittings which form part of the property, and were relied upon in the JJJ Valuations to value the property at $1,800,000. These include, but are not limited to the Smart house computer system with integrated TV, music, security cameras and alarm system as detailed in the JJJ Valuations Report and being items 1 to 19 and 29 to 35 in Annexure A. There is no intercom system. This was an error made by JJJ Valuations.

   28.The Wife has previously removed and sold items from the property. Some of these are referred to in paragraph 14 of the Orders made 18 September 2017, as the Wife had removed some items from the property. She admitted in paragraph 10 of her affidavit filed on 16 May 2018 to selling a sound system to a friend for $2000.

   29.It cannot be the case that paragraph 10 of the Orders made on 18 September 2017 is a Final Property Order and the Husband seeks that he retain the items listed in Annexure A, some of which have not yet been be provided to him pursuant to the 18 September 2017 orders, and others about which there are no orders, although equally no orders that the Wife retain them on a final basis.

   30.In the alternative to an order that the Husband retain the items listed in Annexure A, the Husband proposes that the Wife vacate the property taking only her personal clothing and chattels. This is not his preference as he realises that the Wife needs some furniture to set herself up elsewhere.

   31.It is submitted that an Order should be made requiring the Wife to pay any outstanding rates and utilities accrued during the period that she occupied the property to be paid from her share of the sale proceeds, as she was required to pay these costs in accordance with Order 4(d) of the Orders made 18 September 2017.

3. The wife said in her written submissions on this issue:

   On 18 September 2017, the parties being represented by Counsel before Your Honour, an Order was made by Consent inter alia as follows:-

   “That the Husband collect the items ticked in Schedule A from the garage in 2017 from noon and such collection finalise all chattel exchange between the parties (my emphasis) save and except for those items in Order 11 and the Motorcycle K, Motorcycle WW and KKK Bike and go kart the value of which will be included in the property division (Order 10).”

   A further Order was made by consent (Order 11) that the Husband reserves his right to seek an Order for the return of the following items at interim and final hearing which the Wife is not agreeing to;

   a)Water ski

   b)Media box in back room;

   c)Playbar Sub and 2 x play 3’s (back room);

   d)65 inch LED LCD TV and remote (back room);

   e)Dyson V8 absolute battery portable vacuum;

   j)King bed, bed head, two pillows and doona, underlay and sheet set;

   g) Signed sports jumper.

   The Husband did not seek an Order for the return of those items at the trial.

   Notwithstanding, the Wife will agree to an Order that of the items referred to in Order 11 of the Orders made 17 September 2017, the Water ski and Dyson V8 absolute battery portable vacuum be returned to the Husband, the Wife retain the and the king bed and accompaniments (her bed), the signed jumper was a birthday gift by the parties to X (who played professional sports, lives in Queensland and has retained the jumper), and that the remaining items being the media box in the back room, Playbar and 65 inch LED TV remain with the home to be sold.

4. When the principal reasons for judgment were delivered, the court’s invitation to make submissions on the orders to be pronounced was not an invitation to open matters that had not been dealt with at the trial. The table jointly submitted by the parties made no mention of any chattels at all. It is not now open to the husband to agitate that issue, unless he succeeds in making a formal application to re-open his case.

5. Having said that, it is probably fair to proceed on the basis that the Smart System was part and parcel of the house, and should be sold with it. In addition, the wife is agreeable to the husband having the water ski and the Dyson V8. In respect of the other chattels in the property, I consider that they should be treated as being in the wife’s possession as at the date of the orders, and she should be free to take them with her when she vacates the property, as envisaged in paragraph 30 of the husband’s written submissions. Orders will be made to that effect.

Rates, utilities etc.

1. The husband then sought an order that, upon vacating the property, the wife:

   Discharge and indemnify the husband for all outstanding rates, utilities and other outgoings in relation to the former matrimonial home which were incurred during the period of 24 June 2017 to the date in which she vacates the property, and any arrears be deducted from the amount payable to her under paragraph 4.6.

2. The wife did not resist that order. It seems reasonable, and will be made.

Value of the asset pool

1. In their post-hearing written submissions, the parties submitted that the court had made three errors in ascertaining the value of the asset pool. The first concerned the debt owed to the wife by B Pty Ltd. The parties agreed that the amount of that debt, being $35,745, should be deducted from the value of the Bainey Group, reducing its value from $1,183,000 to 1,147,250. I accept the parties’ view on this. It follows that the overall value of the pool should also be reduced by $35,745, bringing its value down from $2,642,858.12 to $2,607,113.10.

2. The wife submitted that the court made a second error in that it had double counted the debt owed by the parties to A Pty Ltd. The wife said that the debt was double counted because it was included in the value of A Pty Ltd but also included by me as a liability of the parties. However, the debt owed by the parties is an asset of A Pty Ltd and a liability of the parties. It is in accordance with Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52 that the court identify the actual assets and liabilities of each party. In the present case, the husband owns the Bainey Group, which has an asset consisting of the debt owed by the parties to it. Simultaneously, the parties have a liability which is equal to that debt, and, in terms of the asset pool, cancels it out.

3. My reading of the husband’s post-judgment submissions is that he did not agree with the wife’s argument in relation to the second error.  The table in paragraph 3 of the husband’s post-judgment submissions dated 9 June 2020 expressly states that the value of the Bainey Group is $1,147,250, which was the figure given by the experts in exhibit 27 less $35,745.

4. The husband purported to exclude from the pool all of the individual debts of each party: see the husband’s Annexure B, and the table in paragraph 3 of the husband’s post-judgment submissions dated 9 June 2020.  However, in accordance with Stanford, I have included them in the pool, and determined a percentage split with those inclusions in mind.  Obviously, there are any number of ways to lawfully adjust the assets of the parties to a marriage. The way that was customary pre-Stanford is not the only way, or necessarily the best way.  In any event, I do not accept that there was a second error, as alleged by the wife.

5. Having said that, the figures in paragraphs 4.44. and 4.45 of the experts report (exhibit 27) seem bizarre, in that they appear to state that the value of the Bainey Group is less if the wife’s debt to A Pty Ltd is payable than if it is not payable.  However, I defer to the experts’ evidence, which was tendered as an agreed position.  If the experts did make a mistake, I suspect it was in paragraph 4.45 rather than in paragraph 4.44, which gives me comfort in relying on the figure in paragraph 4.44.

6. The wife submitted that the court made a third error in that it did not include in the pool the add backs of the wife’s part property settlements, which totalled $157,275. I took that approach because the High Court said in Stanford that the court’s task is to identify what each party actually owns and owes, although that position has subsequently been wound back somewhat by the Family Court.  It was not suggested by either party that, at the time of trial, the wife still had the $157,275.

7. Nevertheless, the husband appeared to agree that the $157,275 that the wife received as a part property settlement should be included in the property pool: see item 3 in the table included in the husband’s post-judgment written submissions filed on 9 June 2020.  In view of the husband’s apparent agreement, the $157,275 will be included in the asset pool. 

8. I am grateful to the practitioners for identifying these errors.  With the corrections for the B Pty Ltd debt and the part property settlements, the pool is worth $2,764,388.10, rather than $2,642,858.12, as originally found.  The difference is $121,530. 

9. Although the change in the value of the pool is significant, I consider that the split of 60:40 in the husband’s favour is still just and equitable.  Indeed, if anything, I consider that that split, based on the revised value of the pool, is more in keeping with my original intention than the split based on the pool as stated in the reasons delivered on 25 May 2020. 

10. For convenience, I will restate order 1 made on 25 May 2020 in the present orders. I will also give the parties liberty to apply in relation to the calculation of the division of assets, because the history of this matter suggests that it will be necessary. 

11. Following notice that the preceding orders and reasons were to be delivered, the parties jointly signed a letter to chambers seeking an order by consent that any payment to the wife pursuant to these orders be paid to the trust account of the wife’s solicitors.  That order will be made by consent.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:         24 June 2020