BALDONI & BALDONI - [2019] FamCA 446

FAMILY COURT OF AUSTRALIA

BALDONI & BALDONI

[2019] FamCA 446

FAMILY LAW – PROPERTY – Injunctions – Preservation of property – Single expert valuation fees – Orders

Family Law Rules 2004 (Cth) ch 15

APPLICANT:

Ms Baldoni

RESPONDENT:

Mr Baldoni

FILE NUMBER:

SYC

1234

2019

DATE DELIVERED:

10 July 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Berman J

HEARING DATE:

13 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Watson & Watson Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Coulton

SOLICITOR FOR THE RESPONDENT:

Kyle Family Lawyers

THE COURT ORDERS UNTIL FURTHER ORDER:

That each party shall use the assets and income under his or her effective control only in the ordinary course of business, unless otherwise agreed in writing.
The wife shall have exclusive occupancy of the farm known as “G Property” situate at B Street, Town C, NSW to the exclusion of the husband together with the Vehicle 1 registration number ….
The husband shall have exclusive occupation of the property situate at D Street, Suburb F NSW to the exclusion of the wife.
Each party be restrained by injunction from assigning, transferring, further encumbering by mortgage or charge or otherwise dealing with or disposing of his or her interest in the following:
(a)       “G Property”, B Street, Town C NSW;
(b)        H Street, Suburb L NSW;
(c)       1 K Street, Suburb M NSW;
(d)       2 K Street, Suburb M NSW;
(e)       2 H Street, Suburb L NSW;
(f)       J Street, Suburb M NSW;
(g)       D Street, Suburb F NSW;
(h)       N Street, City P
Each party shall forthwith do all things necessary to authorise and direct or otherwise cause the rental income, net of property management fees, received from the leasing agents of the properties;
(a)       1 K Street, Suburb M, NSW;
(b)       1 H Street, Suburb L NSW;
(c)       2 H Street, Suburb L NSW; and
(d)       N Street, City P:
to be paid towards the required repayments on the loans secured against each of the properties, rates, and any other costs the parties as landlords are legally obliged to pay in respect to each property, with any surplus or shortfall to be shared equally between the parties.
The wife be restrained from:
(a)Attending any premises at which the company R Pty Ltd carries on business;
(b)Disclosing to any third party any information about R Pty Ltd disclosed by the husband for the purposes of these proceedings.
The husband be restrained from:
(a) Attending any premises at which the company T Pty Ltd carries on business;
(a) Disclosing to any third party any information about T Pty Ltd disclosed by the wife for the purposes of these proceedings.
By 29 July 2019 and each month thereafter the husband shall provide to the wife:
(a)A copy of all and any Business Activity Statement(s) lodged for the preceding month on behalf of R Pty Ltd or any other business operated by the husband;
(b)A copy of the profit and loss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BALDONI & BALDONI

Details

AGLC: BALDONI & BALDONI [2019] FamCA 446
Case: [2019] FamCA 446
Decision Date: 10 July 2019

CaseChat Overview and Summary

In *Baldoni & Baldoni*, Berman J made orders concerning the preservation of assets and the conduct of the parties in family law proceedings. The dispute involved a husband and wife, and the court was required to make orders to manage their financial affairs and property pending further resolution.

The court was tasked with determining the appropriate interim orders to govern the parties' use of assets and income, the exclusive occupation of certain properties, and the restraint of dealings with various listed properties. Further issues included the management of rental income from specific properties, injunctions preventing disclosure of business information and attendance at business premises, and the provision of detailed financial disclosure by both parties regarding their respective business interests. The court also needed to address the appointment and fees of a single expert witness to value the parties' interests in several entities.

Berman J applied principles of family law concerning property preservation and financial disclosure. The court ordered that each party use assets and income only in the ordinary course of business, unless otherwise agreed. Exclusive occupancy of the farm property was granted to the wife, and exclusive occupation of a residential property was granted to the husband. Both parties were restrained from assigning, encumbering, or disposing of their interests in a list of specified properties. Orders were made for the application of rental income from certain properties towards loan repayments and associated costs, with any surplus or shortfall to be shared equally. Specific injunctions were imposed on each party regarding their conduct in relation to the other's business entities. Comprehensive monthly financial disclosure obligations were imposed on both the husband and wife concerning their respective business interests. The court also ordered the appointment of a single expert to value the parties' interests in various trusts and companies, with the husband to be initially responsible for the expert's fees, subject to later apportionment. Finally, the wife was ordered to file a financial statement and provide disclosure regarding the disposal of a specific sum of money, and both parties were required to provide statements of their incurred and anticipated legal costs.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER:

That each party shall use the assets and income under his or her effective control only in the ordinary course of business, unless otherwise agreed in writing.

The wife shall have exclusive occupancy of the farm known as “G Property” situate at B Street, Town C, NSW to the exclusion of the husband together with the Vehicle 1 registration number ….

The husband shall have exclusive occupation of the property situate at D Street, Suburb F NSW to the exclusion of the wife.

Each party be restrained by injunction from assigning, transferring, further encumbering by mortgage or charge or otherwise dealing with or disposing of his or her interest in the following:

(a) “G Property”, B Street, Town C NSW;

(b) H Street, Suburb L NSW;

(d) 2 K Street, Suburb M NSW;

(e) 2 H Street, Suburb L NSW;

(f) J Street, Suburb M NSW;

(g) D Street, Suburb F NSW;

(h) N Street, City P

Each party shall forthwith do all things necessary to authorise and direct or otherwise cause the rental income, net of property management fees, received from the leasing agents of the properties;

(a) 1 K Street, Suburb M, NSW;

(b) 1 H Street, Suburb L NSW;

(d) N Street, City P:

to be paid towards the required repayments on the loans secured against each of the properties, rates, and any other costs the parties as landlords are legally obliged to pay in respect to each property, with any surplus or shortfall to be shared equally between the parties.

The wife be restrained from:

(a) Attending any premises at which the company R Pty Ltd carries on business;

(b) Disclosing to any third party any information about R Pty Ltd disclosed by the husband for the purposes of these proceedings.

The husband be restrained from:

(a) Attending any premises at which the company T Pty Ltd carries on business;

(a) Disclosing to any third party any information about T Pty Ltd disclosed by the wife for the purposes of these proceedings.

By 29 July 2019 and each month thereafter the husband shall provide to the wife:

(a) A copy of all and any Business Activity Statement(s) lodged for the preceding month on behalf of R Pty Ltd or any other business operated by the husband;

(b) A copy of the profit and loss statement of R Pty Ltd and any other entity operated by the husband for the preceding month;

(c) A copy of the bank statements for the preceding month for each bank account held in the name of R Pty Ltd, V Pty Ltd, S Pty Ltd and E Pty Ltd and any other interest that the husband has in a business or enterprise.

(d) A copy of the contract report and a copy of all aged creditors and debtors each month including a balance sheet for R Pty Ltd NOTING that the names of creditors and debtors are not to be redacted.

By 29 July 2019 each month thereafter the wife shall provide to the husband:

(a) A copy of all and any business activity statement lodged for the preceding month on behalf of T Pty Ltd and the U Trust interest that the wife has in a business or enterprise.

(b) A copy of the profit and loss statements for the preceding month for T Pty Ltd and any other business operated by the wife including but not limited to business conducted by the wife as a sole trader or through the U Trust.

(c) A copy of the bank statements for the preceding month for each bank account held in the name of T Pty Ltd and any other business entity operated by the wife including the bank accounts held by any person or entity as trustee for the enterprise trust.

If either party registers a company or business name with ASIC for the purpose of trading commodities, that party must notify the other in writing within 24 hours of the said registration.

A single expert witness is to be agreed between the parties within 21 days, or as ordered by the court in the absence of agreement, to provide an opinion to the value, if any, of the parties’ interests in the following entities:

· The U Trust;

· T Pty Ltd;

· R Pty Ltd;

· V Pty Ltd;

· S Pty Ltd;

· E Pty Ltd;

noting that the single expert may be requested to consider the loan accounts (credit and debit) for the parties and any inter entity loans together with a consideration of any misappropriation of assets.

For the purpose of the appointment of a single expert and the valuations of the parties’ interests in the named entities;

(a) Within 14 days the applicant’s solicitor will provide the respondent’s solicitor a list of at least three names of appropriately qualified and experience forensic accountants;

(b) Within 7 days of receipt of the list referred to in paragraph 12(a) the respondent’s solicitors will advise the applicant’s solicitors of the expert nominated by the respondent; and

(c) Within a further 7 days the parties shall jointly instruct the nominated expert or experts to provide a report addressing the valuation issues as set out herein in accordance with chapter 15 rules.

The husband will be responsible for the payment of any single expert fees at first instance but the wife shall be responsible for one half of the said fees to be paid as part of the final settlement or such earlier times as circumstances may determine.

Within 14 days the wife shall;

(a) File and serve a financial statement;

(b) Provide to the husband, detailed disclosure about the disposal of the whole or part of the $136,000.00 including documents in support.

Within 21 days the parties shall provide to the court and each other a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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