Bakir & Bakir (No. 2)

[2021] FamCA 485

FAMILY COURT OF AUSTRALIA

Bakir & Bakir (No. 2) [2021] FamCA 485

File number(s):	SYC 1231 of 2021
Judgment of:	HARPER J
Date of judgment:	24 June 2021
Catchwords:	FAMILY LAW – PROPERTY – Injunctions – Whether injunctive relief should be extended –Where funds the subject of injunctive relief has been dissipated out of the hands of the enjoined parties – Where no utility in proposed injunctions – Where orders made for respondent parties to file and serve affidavit evidence concerning payment to and from the husband since December 2020.
Legislation:	Family Law Act 1975 (Cth) ss 79, 114
Cases cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Number of paragraphs:	20
Date of hearing:	24 June 2021
Place:	Sydney
Counsel for the Applicant:	Ms Lioumis
Solicitor for the Applicant:	Coutts Solicitors & Conveyancers
Counsel for the First Respondent:	Mr Apelbaum
Solicitor for the First Respondent:	Mistry Fallahi Lawyers
Counsel for the Second and Third Respondents:	Mr O’Brien
Solicitor for the Second and Third Respondents:	Integrity Legal Specialist
The Fourth Respondent:	No appearance

ORDERS

SYC 1231 of 2021

BETWEEN:

MS BAKIR

Applicant

AND:

MR BAKIR

First Respondent

G PTY LTD

Second Respondent

MR H BAKIR  (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.By no later than close of registry filing on 25 June 2021, the Applicant Wife is to file and serve an Amended Application in a Case.

2.By no later than close of registry filing on 9 July 2021, the Applicant Wife is to file and serve a Points of Claim.

3.By no later than close of registry filing on 23 July 2021, the respondents are to file a Defence and Response to an Application in a Case.

4.Fourth Respondent be removed as a party to the proceedings.

5.Order 1 made on 27 April 2021 be varied by removal of any reference to 2 B Street Suburb C, to be read as follows:

1. That pending further order pursuant to s (114)(1) of the Family Law Act (1975) (Cth) (“the Act”) the Husband is restrained from disposing of the following assets without the prior written consent of the Wife:

a. 2 B Street, Suburb C; and

b. D Street, Suburb F.

6.Upon any sale of 2 B Street Suburb C, the proceeds of sale are to be dealt with as follows:

(a)A discharge of the existing mortgage to the National Australia Bank;

(b)Payment of any sale costs and expenses;

(c)With the balance of the proceeds of sale to be held by the Applicant Wife’s solicitors in a controlled monies account in the names of the Applicant Wife and First Respondent Husband.

(d)There be appointed as single expert pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) a properly qualified quantity surveyor to enquire into and report upon the building projects conducted by the respondents, or any of them, at B Street Suburb C, which resulted in the creation of the duplex known as 1 and 2 B Street Suburb C, with such appointment to take place in the following manner:

(i)By 1 July 2021, the Applicant Wife is to submit 3 names of a proposed quantity surveyor to the First Respondent Husband;

(ii)By 8 July 2021, the First Respondent Husband is to pick one quantity surveyor;

(iii)By 22 July 2021, the parties are then to submit a joint letter of instructions to the proposed single expert;

(iv)The parties then submit to Chambers a proposed minute of order by consent appointing the nominated single expert by name.

7.The Applicant Wife is to pay for the costs of the single expert report in the first instance.

8.All parties are to cooperate with the single expert and comply with any reasonable request of the expert for the provision of information or otherwise to enable the preparation of the expert report.

9.By no later than close of registry filing on 9 July 2021, the First Respondent Husband is to file and serve an affidavit accounting precisely for all monies paid by him to the Second and Third Respondent since 1 December 2020.

10.By no later than close of registry filing on 9 July 2021, the Second and Third respondents are to file and serve an affidavit accounting for any monies held by them on behalf of the Respondent Husband or otherwise paid to them by the First Respondent Husband since 1 December 2020.

11.Proceedings be stood over before a senior registrar on the next available date with the intention that the proceedings be progressed towards a conciliation conference.

12.The parties will be notified by the court of the next listing date.

13.All questions of costs be reserved.

14.The Application in a Case filed by the Second and Third respondents on 21 May 2021 be dismissed.

15.The Response to an Application in a Case filed 21 June 2021 by the Applicant Wife be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

HARPER J

1. In proceedings SYC1231 of 2021, on 24 June 2021 there was listed the further return of Applications in a Case and Responses concerning injunctive relief.  The proceedings first came before me on 29 March 2021 when certain injunctive orders were made.  The matter returned before me on 27 April and 24 May 2021. 

2. By reason of orders made on one or other of those occasions the Second, Third and Fourth Respondents were joined to the proceedings.  The Third Respondent is the brother of the First Respondent Husband.  And the Second Respondent is a company owned and operated by the Third Respondent. 

3. The injunctive relief ordered previously related to the proceeds of sale of one of the duplexes at B Street, Suburb C, being number 1.  Those injunctions in summary restrained the Second and Third Respondents dealing with the proceeds of sale of 1 B Street and are due to expire on 25 June 2021. 

4. Leave was also given to the Second and Third Respondents to make an Application to be removed as parties to the proceedings.  When the matter came back before me on 24 June 2021, after consideration of the discussion between Bench and Bar Table, the Second and Third Respondents conceded that they ought to remain parties to the proceedings at least for the time being, in light of the Applicant Wife's (“the wife”) contention that they have been in receipt of funds which were the proceeds of sale of what the wife contends should be characterised as matrimonial assets for the purposes of a property adjustment being made pursuant to s 79 of the Family Law Act1975 (Cth).

5. It became clear in hearing submissions from the parties on 24 June 2021 that a number of matters could be dealt with by consent, including the filing of updated pleadings by the wife, orders in respect of a possible sale of 2 B Street, and the appointment of a single expert in the nature of a quantity surveyor.  I will return to those orders in due course.

6. The central matter of contention was primarily between the wife and the Second and Third Respondents.  The wife pressed for orders in effect extending injunctive relief against the Second and Third Respondents.  The orders sought initially included an order against the company named as Fourth Respondent, J Pty Limited, however, it was common ground that that corporation has been deregistered and accordingly no orders were pressed against it and I will make an order removing it as a party to the proceedings. 

7. The remaining orders were in respect of the Second Respondent G Pty Limited and the Third Respondent Mr H Bakir.  The specific orders were those as articulated at paragraphs 4 and 5 of the wife's Response to an Application in a Case filed on 21 June 2021. 

8. Those orders are in the following terms:

   4. That G Pty Ltd be restrained pending further order from dealing with in any manner the following:

   a. The proceeds of sale 1 B Street Suburb C;

   b. Any funds directed to be paid to them from K Lawyers from the proceeds of sale of 1 B Street, Suburb C;

   c. Any funds paid to it by the Husband since 5 December 2020;

   d. Any funds it holds for and on behalf of the Husband and J Pty Ltd.

   5. That Mr H Bakir be restrained pending further order from dealing with in any manner the following:

   a. The proceeds of sale of 1 B Street, Suburb C;

   b. Any funds directed to be paid to them from K Lawyers from the proceeds of sale of 1 B Street, Suburb C;

   c. Any funds paid to him by the Husband since 5 December 2020;

   d. Any funds he holds for and on behalf of the Husband, G Pty Ltd and/or J Pty Ltd.

9. In respect of orders 4(a) and (b) and 5 (a) and (b), the Second and Third Respondents contended that these were orders of an interlocutory nature which were not properly connected to any claim for final relief against them which is a clear requirement for interlocutory injunctive relief: Lenah Game Meats case (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63.

10. It was further contended that the subject matter of orders 4 (a) and (b) and 5 (a) and (b), being the proceeds of sale of 1 B Street were no longer in the hands of either the Second or Third Respondents.  The Third Respondent filed and served affidavit evidence in which he deposed that the proceeds of sale of B Street Suburb C have been dispersed by him or at his direction and are no longer held by either of the Second or Third Respondents. 

11. In particular, the Third Respondent gave evidence that an amount of $365,000 together with a further amount of $180,000 had been dispersed to his wife, Ms L Bakir.  He gave evidence that those funds were proposed to be utilised by him and his wife for the purpose of purchasing a property in Suburb M.  He annexed to his affidavit, the front page of a contract for sale of that property to him and his wife for the purchase price of $2,056,000 with a completion date for the purchase said to be 28 June 2021.

12. The wife argued strongly that the way in which the Second and Third Respondents disclosed their evidence outside directions that were made by the court, and in a manner which incompletely disclosed relevant information should give the court reason for concern and justify the continuance or extension of the existing injunctive relief in terms of paragraphs 4 and 5 of her Response. 

13. However, I am not satisfied that the injunctive relief in paragraphs 4(a) and (b) and 5(a) and (b) should be extended.  The Second and Third Respondents have filed and served sworn evidence as to where proceeds of sale of 1 B Street have been dispersed, and it is beyond argument that neither of them currently hold any of those funds.  Accordingly, I am not persuaded there is any utility, for that reason, in making the orders sought by the wife in paragraphs 4(a) and (b) or 5 (a) and (b). 

14. It may be that upon the wife amending her Application and filing the Points of Claim, which I propose to order, that the final relief sought against the Second and Third Respondents will be better articulated. But at present such final relief is articulated solely in the form of a submission by counsel for the wife that orders will be sought for moneys to be repaid by the Second or Third respondents as part of the wife’s final relief. 

15. In circumstances where there is sworn evidence supported by documentary material which satisfies me on an interlocutory basis that the Third Respondent and his wife have entered into a contract for the purchase of an expensive property in Suburb M, I am not satisfied that the balance of convenience would favour extending the injunctions in circumstances where it would potentially and unnecessarily expose the Third Respondent and his wife to the forfeiture of a deposit they have paid and/or rescission of the contract for sale, causing them to lose the benefit of the property that they propose to purchase.

16. Furthermore, assuming that the contract will be settled in the ordinary course on 28 June 2021, then a large proportion of the proceeds of sale of 1 B Street will be utilised for that purpose, and the property at Suburb M will be held partly by the Third Respondent thereafter, and may, if necessary, ultimately provide a basis for the satisfaction of any final relief against the Third Respondent in respect of which the wife is successful in these proceedings.  I express no concluded view about that; I only acknowledge the possibility.

17. With respect to orders 4(c) and (d) and 5(c) and (d), if orders were made in those terms, in my view they would be too wide in the sense that they are not justified by the wife in light of the material provided by the husband and the second and third respondents in response to her claim for injunctive relief.

18. The position of the wife, in my view, can be more satisfactorily protected by making orders that the husband and the Second and Third Respondents file affidavit material which account for funds paid to the Second and Third respondents by the husband since December 2020, and by accounting for any moneys held by either the Second and Third Respondents on behalf of the husband presently.

19. Accordingly, I do not propose to make any further order extending the injunctive relief that expires on 25 June 2021.  I note here, however, that there is additional injunctive relief in relation to the former matrimonial home at D Street, Suburb F, in respect of which the husband has consented to a restraint.

20. There is also injunctive relief in relation to 2 B Street in respect of which the parties ultimately reached an agreed position for allowing that that property to be sold, but for the balance of the proceeds of sale to be held in a controlled moneys account.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       6 July 2021

SCHEDULE OF PARTIES

SYC 1231 of 2021
Respondents
Fourth Respondent:	J PTY LTD