Balian & Balian
[2021] FedCFamC1F 163
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Balian & Balian [2021] FedCFamC1F 163
File number(s): MLC10819/2019 Judgment of: HARTNETT J Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for Review of a Registrar’s decision – Application granted – hearing de novo – Application in a Case – commercial litigation in the Supreme Court of Tasmania – interim Orders made March 2021 – proceeds of sale of real property distributions – March 2021 Orders provide for payments in respect of Tasmanian Litigation – Orders made setting aside the Registrar’s decision. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 32 Date of last submission/s: 14 October 2021 Date of hearing: 14 October 2021 Place: Melbourne Queen’s Counsel for the Applicant: Mr Dickson Solicitor for the Applicant: Coote Family Lawyers Senior Counsel for the Respondent: Ms Smallwood Solicitor for the Respondent: Taussig Cherrie Fildes ORDERS
MLC 10819 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALIAN
Applicant
AND: MR BALIAN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed 27 September 2021 be allowed.
2.The Orders of a Registrar made on 15 September 2021 be set aside.
3.The monies held on behalf of the parties in the trust account of Taussig Cherrie Fildes (“TCF”) being the balance of proceeds of the sale of B Street, Suburb D in the State of Victoria be dispersed in accordance with Order 4 of the Orders made on 23 March 2021 (as amended pursuant to r. 17.02(1)(h) of the Family Law Rules 2004 (Cth)).
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balian & Balian is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
INTRODUCTION
On 27 September 2021 an Application for Review of a decision of a Registrar was filed by the Respondent husband (“the husband”). The Orders made by the Registrar were made on 15 September 2021 which are as follows:
That the monies held in the TCF [Taussig Cherrie Fildes] trust account pursuant to the orders made on 14 January 2021 and 23 March 2021 be disbursed by way of enforcement as follows:
1.An amount be paid to the husband that is required to reimburse the Husband for the arrears paid for the E Business insurance.
2.A sum of $100,000.00 each to the Husband and Wife by way of part property settlement such sums to be paid to their respective solicitors.
3.The sum of $100,000.00 to the Westpac Express Account to fund payments referred to in paragraph 2 of the orders made on 14 January 2021.
4.The payment of any arrears owing on the Westpac loans …30 & …44 and
5.The balance to be retained in the TCF [Taussig Cherrie Fildes] trust account pending agreement by the parties or order of the court.
(As in the original)
There is an ongoing stay in respect of the operation of the above Orders to the present time. I note Orders 1-4 above reflected in part orders made as to a disbursement of funds in accordance with Order 15 of the Interim Consent Orders made 14 January 2021 (“the January Orders”).
The Application for Review proceeded by way of hearing de novo.[1]
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 14.07(1).
The Orders made on 15 September 2021 were made on an Application in a Case filed by the Applicant wife (“the wife”) on 17 August 2021. The wife described that application as an enforcement application. In support of that Application in a Case, the wife relied upon Affidavits of Evidence filed by her on 17 August 2021 and 30 September 2021. Additionally, the wife relied upon her Financial Statement of 15 September 2021.
The wife sought in her Application in a Case, relevantly, that:
…
2.For the purposes of enforcement of order 15 of the orders dated 14 January 2021 and order 4 of the orders dated 23 March 2021 the wife be and is hereby permitted to do all such acts and things and sign all necessary documents to authorise the distributions of the funds in accordance with order 15 of orders dated 14 January 2021 and order 4 of the orders dated 23 March 2021 without the husband’s joint-authorisation.
3.The husband pay the wife’s costs of and incidental to this application on an indemnity basis.
Additionally the wife sought a raft of orders on the hearing of the review application as set out in “Annexure A” to these reasons. These orders first appeared as sought by the wife in an annexure to the Affidavit filed by her on 30 September 2021.
In response, the husband sought a raft of orders as set in “Annexure B” to these reasons. Essentially, the husband opposed the making of orders as sought by the wife in her Application in a Case. For the purposes of the hearing de novo the husband relied upon, with the leave of the Court,[2] an Amended Response to Application in a Case filed 4 October 2021 which sought the initial Orders as sought before the Registrar but added a further Order sought as follows:
…
19.In the event there is a dispute between the Husband and the Wife regarding the quantum of pay-out to be offered to Ms C in settlement of the Tasmanian litigation and the terms of any payment to be made, the parties shall abide by the recommendations of Mr F of G Lawyers.
…
[2] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 14.05(4).
Otherwise the husband relied upon his Financial Statement filed 13 September 2021, Affidavits of Evidence filed by him on 14 September 2021 and, with the leave of the Court, on 13 October 2021. By Application filed 26 October 2021 to adduce further evidence, the husband sought to rely upon an affidavit filed by him on 26 October 2021. The husband was granted leave to adduce that further evidence by Order made by consent on 26 October 2021 as follows:
1.The Applicant husband have leave to re-open the Application in a Proceeding (Review) filed on 27 September 2021 and rely upon the Affidavit sworn by him on 26 October 2021.
The Court was not able to deal with the totality of the orders sought by each of the parties additional to the review application. The parties have a further hearing date in November to agitate their ongoing disputation. They agreed the issue before the Court should be confined to whether the Orders made on 15 September 2021 should be affirmed or set aside such that there should be a disbursement of the monies held on trust on behalf of the parties in accordance with Orders made on 23 March 2021, and not on 14 January 2021 and in particular in accordance with Order 4(d) of the Orders made on 23 March 2021.
The previous orders of the Court, relevant to the competing applications, are: Orders 7 and 8 made 10 August 2020 by consent (“the August Orders”); Orders 4, 14(c) and 15 of the Orders made by consent on 14 January 2021 (amended pursuant to the slip rule on 27 October 2021); and Orders 3 and 4 of the Orders made by the Court on 23 March 2021 (amended pursuant to the slip rule on 28 October 2021) (“the March Orders”).
Those Orders are as follows:
(a)the Orders made on 10 August 2020:
…
Sale of B Street
7.Within forty-five (45) days the parties, including in their capacity as trustees for the Balian Family Trust do all acts and things necessary and sign all documents required to sell the property situate and known as B Street, Suburb D more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“B Street”) and for the purposes of the sale:
(a)the parties jointly engage Mr H of J Real Estate as the real estate agent (“Selling Agent”);
(b)the method of sale, reserve price and sale price be agreed between the husband and wife and failing agreement, as determined by the Selling Agent;
(c)the parties jointly engage a solicitor nominated by the wife to undertake the conveyance of the sale of B Street;
(d) the parties:
(i)allow inspection of B Street at all times requested by the Selling Agent;
(ii)make the keys to B Street available to the Selling Agent; and
(iii)ensure the property is neat, clean and in good order and repair at the time of any inspection;
(e)the parties both be at liberty to communicate directly with and obtain information directly from the selling agent.
8.Upon settlement of the sale of B Street the proceeds be applied in the following manner and priority:
(a)first, to discharge the registered mortgage (Westpac Banking Corporation …) secured against the title to B Street;
(b)secondly, to meet all expenses associated with the sale of B Street including agents’ fees and commissions;
(c)thirdly, to pay all rates, taxes and apportionable outgoings in respect of B Street;
(d) fourthly, in payment of the reasonable costs of the conveyance;
(e)fifthly, any remaining balance be deposited into the trust account of the wife’s solicitors, Taussig Cherrie Fildes, (Bank of Melbourne BSB … Account number: …82 reference: Balian) to be held on trust for the parties pending further written agreement or order including in respect of payment of taxation of any gain on disposal.
…
(b)the Orders made on 14 January 2021:
…
(4)Orders 7 and 8 of the orders dated 10 August 2020 in relation to the sale of the B Unit remain in full force and effect.
…
(14)For the purposes of order *15*
14herein the Trust Funds are the funds held on trust by Taussig Cherrie Fildes pursuant to:-…
(c)order 8(e) of the orders dated 10 August 2020 (B Street net proceeds of sale); and…
(15)Upon receipt of the Trust Funds into the trust account of Taussig Cherrie Fildes, the parties do all such acts and things to authorise the distribution of the Trust Funds in the following manner and priority:-
(a)first to reimburse the wife the sum of $82,993 on account of the costs paid by her to JJ Group on behalf of K Pty Ltd, subject to the wife making the payment pursuant to order 24(b) herein;
(b)second to reimburse the husband for the arrears paid on the E Business insurance paid pursuant to order 8 herein;
(c) $100,000 paid to each:-
(i)the husband via Coote Family Lawyers by way of part property settlement; and
(ii)the wife via Taussig Cherrie Fildes by way of part property settlement;
(d)the sum of $100,000 to the Westpac Expenses Account to fund the payments in accordance with order 2 herein;
(e)any arrears owing on the Westpac loans …30 and …44 secured against the Suburb L Property; and
(f)otherwise, the husband and wife have liberty to apply to the Court in relation to further payments from the Trust Funds.
(Amended pursuant to r. 17.02(1)(h) of the Family Law Rules 2004 (Cth) now r. 10.13(1)(h) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 27 October 2021).
(c)the Orders made on 23 March 2021:
…
(3)The husband be appointed the wife’s agent for the sale of the real property at B Street, Suburb D (“Suburb D”) under order 7 of the orders made on 10 August 2020 (“order 7”).
(4)Order *8
7of the orders made on 10 August 2020* be varied to provide that the proceeds of sale of Suburb D be applied as follows:a. firstly, to pay the costs of and incidental to the sale;
b.secondly, to pay to the mortgagee such amount as is required to be paid by the mortgagee under all mortgages as secured by the title;
c.thirdly, to pay any amount that remains due and payable under order *2*
1(b) -(d) hereof;d.fourthly, to pay any costs
ofor settlement of the Tasmanian litigation wherein the company K Pty Ltd is the First Defendant and the parties are the Second and Third Defendants; ande. finally, any balance be paid to the trust account of TCF solicitors.
…
(Amended pursuant to r. 17.02(1)(h) of the Family Law Rules 2004 (Cth) now r. 10.13(1)(h) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 October 2021).
BACKGROUND
Sale of Properties
The August Orders, relevantly provided for the sale of two properties situate at:
(a)M Street, Suburb O in the State of Victoria (“the M Street unit”) which was to be sold forthwith; and
(b)B Street, Suburb D in the State of Victoria (“B Street”) which was to be sold within 45 days of the making of the Orders.
Order 12 of the August Orders, provided for the solicitor of each party to receive $50,000 in payment of their respective legal costs and disbursements.
The January Orders relevantly provided for the sale of two further properties situate at:
(a)N Street, City P in the State of Tasmania (“N Street”) which was to be sold forthwith; and
(b)Q Street, Suburb S in the State of Victoria (“Q Street”) which was to be sold forthwith.
Following the various payments for expenses prescribed by the Orders, any remaining balance of proceeds from the sale of the four properties referred to above was to be deposited into the trust account of Taussig Cherrie Fildes solicitors (“TCF solicitors”).
Orders 14 and 15 of the January Orders provided for what was to happen with the balance of funds held on trust by TCF solicitors.
The M Street unit sold on 25 March 2021. Approximately $22,000 of the net proceeds have since been applied to joint expenses. B Street sold on 22 May 2021 with settlement of the sale in July 2021. The proceeds of sale of these two properties were deposited into the TCF solicitors trust account. The property at N Street remains unsold. The property at Q Street remains unsold.
It is the husband’s evidence that he continues to be frustrated at the unnecessary delays in selling the four (4) properties pursuant to the interim August and January Orders and accordingly sought to sell a property owned by him at R Street, City P in the State of Tasmania (“R Street”). By agreement between the parties, the property was sold for $267,000 in early June 2021. The parties agreed to set aside $20,000 for the future payment of Capital Gains Tax. After the discharge of the mortgage and payment of other associated sales expenses, the parties received approximately $67,000. It is the husband’s evidence that he has since used these funds to secure the finance arrangement for his new motor vehicle, having sold the Motor Vehicle 1 to pay the legal fees owing by the parties to T Lawyers. The husband currently holds the balance of approximately $54,000 which he has set aside to fund his legal fees and disbursements in the proceedings, the Intervention Order proceedings, and for costs associated with relocating from the property situate at U Street Suburb L in the State of Victoria (“U Street”) in which he has resided. The wife does not address her application of these funds in her evidence.
It is the evidence of the husband that on 28 July 2021, in order to generate further necessary funds to settle the parties’ current and contingent liabilities, the husband sought to sell the U Street property, his former residence. The husband expects the U Street property to sell for $2,000,000-$2,200,000[3] and there are two loans secured against this property in the sum of approximately $716,090 (loan account …30) and approximately $346,402 (loan account …44). The husband proposed to the wife that upon settlement, the parties each receive, $250,000 by way of a part property settlement and that the balance of proceeds be held in the TCF solicitor’s trust account pending further agreement. He also proposed that he have sole conduct of the sale. The parties appear to have agreed as to these matters.
[3] Affidavit of the husband filed 14 September 2021 at paragraph 138.
CONSIDERATION
The settlement of the sale of B Street occurred on 26 July 2021. The proceeds of sale were applied in accordance with Order 4(a) and (b) of the March Orders. There were no outstanding amounts payable under Order 2(b) to (d) of the March Orders and therefore Order 4(c) of the March Orders did not apply. The net proceeds of approximately $416,962.13, prior to disbursement in accordance with Order 4(d) of the March Orders, were then deposited into the TCF solicitor’s trust account to be held on trust for the parties. Order 4(d) was then partially executed by the parties to meet two cost payments, the first of $57,000 and the second in a sum not described in the evidence payable to G Lawyers.
Relevant to this particular application, is the commercial litigation in the Supreme Court of Tasmania between Ms C (“the Plaintiff”), and a former employee of K Pty Ltd, and K Pty Ltd, a company of which the husband is the sole director, as the First Defendant, and the parties as the Second and Third Defendants (“the Tasmanian Litigation”). The parties have engaged G Lawyers in respect of the conduct of this litigation. Such litigation is being conducted jointly on behalf of the company and the parties by Mr F of G Lawyers.
On 13 August 2021, G Lawyers provided to the parties the likely settlement range for this dispute and indicated that “a starting settlement range of $300k-$500k would be appropriate.”[4]
[4] Affidavit of the husband filed 14 September 2021 at “Annexure B-1”.
The Tasmanian Litigation is listed for final hearing on 22 March 2022. The expectation of the parties is that the future costs of going to trial is approximately $170,000. The parties and the Plaintiff have negotiated with each other in an effort to resolve the matter. The Plaintiff had earlier advised that she was willing to settle the claim for a sum of $380,000. The parties had made a counter-offer to settle the claim for $250,000. No time frame for payment had been put in those negotiations.
Following the hearing of the Application for Review on 21 October 2021, the parties received a revised offer from the Plaintiff as conveyed by her solicitors, V Lawyers, in the following terms:[5]
We refer to the above matter and confirm our instructions that our client would be willing to accept $315,000 on an 'all-in' basis in full and final settlement thereof.
This offer is open for fourteen days from the date of this letter and is subject to the parties entering into a deed of settlement and release on the usual terms.
We confirm that this offer is a Calderbank offer and that, if the offer is rejected or is not accepted within the stipulated timeframe, and your clients fail to obtain a judgment more favourable than it, this letter shall be relied upon in support of an application that your clients pay our client's costs on an indemnity basis from the date of this letter and costs prior to that on a standard basis. Such application will be made pursuant to the principles enunciated in Calderbank v Calderbank [1975] 3 WLR 586 [“Calderbank”] and discussed in O’Pray v Olbrich [2012] TASSC 3 (and other cases referred to therein).
(Emphasis in original)
[5] Affidavit of the husband filed 26 October 2021 at “Annexure B-1”.
G Lawyers has informed the husband on the husband’s evidence, that he considers the making of such an offer to be a very favourable outcome. G Lawyers has further advised the husband as follows: “I have now exhausted all negotiations. This has been expressed to me as being a final offer.”[6]
[6] Ibid at “Annexure B-2”.
The husband wishes to accept the offer made and finalise the proceeding. The wife has previously indicated that she will not pay an amount beyond $250,000. On 26 August 2021, the wife had not indicated her response to the Calderbank offer. The Court can infer that payment of any settlement sum will be required in full in a reasonable time frame.
The wife submits that the husband has failed to comply with the January Orders in circumstances where, the Tasmanian Litigation had not concluded in a settlement of the claim made by the time of receipt of the proceeds of sale of B Street in July 2021. She argues that the sale proceeds from B Street, absent a settlement pursuant to Order 4(d) of the March Orders, were required to be placed in the trust account of the solicitors for the wife and disbursed in accordance with Order 15 of the January Orders.
In the August and January Orders, the parties agreed on the application of the proceeds of sale of B Street. That property remained unsold, with no net proceeds available to the parties at the time of the making of the March Orders. The progress of the sale had been slow, necessitating the making of Order 3 of the March Orders and of a further interim Order in Order 4 as to the application of the sale proceeds.
Order 4 of the March Orders superseded the earlier orders. That Order again dealt with any prospective proceeds of the sale of B Street with such proceeds to be disbursed in accordance with Order 4(a) to (d) inclusive, prior to “any balance” being placed in the TCF solicitor’s trust account on behalf of the parties. Order 4(d) refers to the costs of the Tasmanian Litigation being paid which has in fact occurred in respect of cost bills rendered to date, and it refers to settlement of that litigation in the context of the Tasmanian Litigation being then on foot, and an attempt at settlement of that litigation being contemplated. Funds were needed to be released from the proceeds of sale of B Street so as to enter into meaningful negotiations with the Plaintiff and/or funds were needed for a mediation and possible trial in the Tasmanian Litigation. Order 4(d) was not referable to a date being the date of settlement of the sale of B Street, as argued for by the wife. It remains an operative Order to the present time.
The fact that the B Street sale proceeds in part exist in the TCF solicitor’s trust account does not nullify the existence of Order 4(d) and its need to be implemented. Indeed the costs which have been paid to date in the Tasmanian Litigation have derived from that trust account, and it is the wife’s case there be no alteration to that arrangement.
The Tasmanian Litigation exposes the parties to obvious and present risks of the incurring of further legal costs in the sum of approximately $170,000 together with the parties exposure to the Plaintiff’s claim, that exposure being assessed by Mr F of G Lawyers as being in the range of $300,000 to $500,000. The funds available to the parties, from the sale proceeds of B Street, the company having no funds to apply to any payment, assist in management of the risks as was contemplated in the seeking of the order that was ultimately made (Order 4(d)).
The wife’s evidence and submissions went to disbursement of the sale proceeds of B Street in accordance with earlier interim orders of the Court. They were clearly superseded to include a very pressing piece of litigation in which the parties are engaged with the purpose of the March Orders being in part to address the need for funds to solve, if possible, the Tasmanian Litigation. The wife submitted that any resolution by agreement of that litigation at the present time could be funded in other ways. That was not apparent on the evidence although specific findings as to those matters must await a final hearing. What is apparent is that the parties have a Calderbank offer that falls at the lower end of the advised range, as provided by their lawyer Mr F, on an “all in” basis which remains open for a limited time. The parties have the ready funds to meet such payment in accordance with the operative March Orders. The rest remains a matter for their agreement.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 29 October 2021
Annexure A
MINUTE OF ORDERS SOUGHT BY THE WIFE
1.The Husband shall have sole conduct of the sale and the Wife shall do all acts and things necessary and sign all documents required by the Husband when provided, to forthwith sell the property situate at and known as U Street, Suburb L in the State of Victoria, more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“U Street”) and for the purposes of the sale:
(a)within 48 hours the Wife sign the necessary Sales Authority to engage J Real Estate, Suburb D as the real estate agent for the sale (“the U Street Selling Agent”) and any other document requested by the Husband to facilitate the marketing for sale of U Street;
(b)as the real estate agent for the sale (“the U Street Selling Agent”) and any other document requested by the Husband to facilitate the marketing for sale of U Street;
(c)the reserve price be as agreed between the parties in writing and failing agreement as determined by the U Street Selling Agent;
(d)the method of sale be agreed between the Husband and Wife and failing agreement, as determined by the U Street Selling Agent;
(e)the parties jointly engage Mr X of W Lawyers to undertake the conveyance of the sale;
(f)the parties both be at liberty to communicate directly with and obtain information directly from the Selling Agent, however the Husband is to provide written instructions on behalf of the parties.
4.Upon settlement of the sale of U Street the proceeds be applied in the following manner and priority:
(a)first, to discharge the Westpac loans ending …30 and …44 secured against the title to U Street (Westpac Banking Corporation Mortgage …);
(b)secondly, to meet all expenses associated with the sale of U Street including agents’ fees and commissions and the cost of any works recommended by the Selling Agent necessary to prepare the property for sale;
(c)thirdly, to pay all rates, taxes and apportionable outgoings in respect of U Street SAVE FOR any overdue maintenance or utility bills which are to be the sole responsibility of the husband;
(d)fourthly, in payment of the costs of the conveyance;
(e)fifthly, the sum of $250,000 to each the Husband and the Wife by way of part property settlement;
(f)any remaining balance be deposited into the trust account of the wife’s solicitors, Taussig Cherrie Fildes, (Bank of Melbourne BSB … Account number: … reference: Balian) to be held on trust for the parties pending further written agreement or order including in respect of payment of taxation of any gain on disposal.
Reimbursement of the children’s account
5.Upon receipt of the husband’s partial property settlement pursuant to order 2(e) herein the husband repay the following amounts withdrawn by him post separation:
(a)the sum of $23,264 to the Westpac account …60 in the name of Y Balian;
(b)the sum of $17,575 to the Westpac account …48 in the name of Z Balian;
and thereafter the parties be restrained by injunction from withdrawing any funds from the said accounts without the written consent of the other party.
Funds held in trust account of Taussig Cherrie Fildes
4.For the purposes of these orders the TCF Trust Funds are the funds held on trust by Taussig Cherrie Fildes pursuant to:
(a) the proceeds of sale of B Street currently held in the trust account;
(b)order 6(d) of the orders dated 14 January 2021 (remaining N Street proceeds of sale);
(c)order 10(e) of the orders dated 14 January 2021 (remaining Q Street proceeds of sale);
(d) order 2 herein (remaining U Street proceeds of sale)
5.Upon receipt of any of TCF Trust Funds into the trust account of Taussig Cherrie Fildes, the parties forthwith do all such acts and things to authorise the distribution of the TCF Trust Funds as follows:
(a)forthwith the sum of $70,000 to be paid to Taussig Cherrie Fildes on behalf of the wife by way of partial property settlement;
(b)forthwith the sum of $70,000 to be paid to Coote Family Lawyers on behalf of the husband by way of partial property settlement;
(c)within seventy-two (72) hours of an invoice being rendered by Mr EE in relation to accounting service, an amount to pay such invoice;
(d)within seven (7) days of the receipt of the details from the husband, to pay any outstanding staff entitlements and other debtors of the E Business to be characterised as a partial property settlement to the husband.
Motor Vehicle 1 and Ms C
6.The proceeds of sale from the Motor Vehicle 1 ($46,555), held in the trust account of Coote Family Lawyers on behalf of K Pty Ltd, be held on trust for the parties pending any settlement or judgment with Ms C in relation to the Supreme Court of Tasmania Litigation.
7.Within seventy-two (72) hours of the acceptance of an offer of settlement or judgment with Ms C in relation to the litigation in the Supreme Court of Tasmania the parties do all such acts and things to authorise the payment of the funds held by Coote Family Lawyers pursuant to order 7 herein to be paid to Ms C on account of such settlement.
8.In the event that the parties settle the Supreme Court of Tasmania litigation with C the parties be at liberty to use up to $205,000 from the TCF Trust Funds to pay the settlement to Ms C and for this purpose the parties jointly authorise Taussig Cherrie Fildes to pay such agreed sum to Ms C.
9.Upon the receipt of invoices by G Lawyers for the provision of legal services to the parties and/or K:
(a)if either party has an objection to the payment of the invoice, within seven (7) days they are to advise the other party in writing and provide reasons; and
(b)in the event that neither party raises any objection in accordance with order 8(a) herein the parties do all such acts and things to authorise the payment of the invoice from the TCF Trust Funds.
10.The parties be restrained by injunction from advising any person, including G Lawyers, of the quantum of funds held in the trust account of Taussig Cherrie Fildes.
K Pty Ltd litigation
11.The husband:
(a)properly defend and comply with all obligations and follows the advice of his lawyers in relation to any commercial litigation concerning K Pty Ltd;
(b)provide to the wife copies of all correspondence he receives with respect to any litigation concerning K Pty Ltd within seven (7) days of receipt by him (noting that the privilege in that advice will not be waived having regard to the common or joint interest between the husband and wife);
(c)the husband do all such acts and things to ensure the wife is copied into all such correspondence;
12.Forthwith upon the husband in his capacity as director of K Pty Ltd entering into any terms of settlement or consent orders to resolve any litigation the husband forward a copy of any terms of settlement or other documents recording such settlement to the wife.
13.The husband is and hereby restrained by injunction, including in his capacity as director of K Pty Ltd, from entering into any terms of settlement to resolve any litigation involving K Pty Ltd including but not limited to the extant debt notice issued by the JJ Group without first providing fourteen (14) days’ notice to the wife in writing.
14.In the event that the husband enters into any settlement in his personal capacity or capacity as a director of K Pty Ltd in relation to K Pty Ltd without the express consent of the wife the husband be responsible and indemnify the wife in relation to:
(a) any liability of K or the parties personally;
(b) all personal taxation in the name of the husband or wife that arises as a result;
(c) any amount to be paid to the JJ Group or any third party;
(d) any action whatsoever taken by any third party as a result of the settlement.
Potential insurance claim /p personal liability
15.Within seven (7) days the husband instruct G Lawyers to provide advice to the parties in relation to directors insurance and any personal liability arising out of any litigation involving K Pty Ltd and keep the wife informed in relation to any advice.
T Lawyers Fees
16.Within seven (7) days the husband produce by way of disclosure the following documents in relation to legal services provided by T Lawyers in relation to all matters concerning K Pty Ltd.
(a)copies of initial estimates of costs and any updated estimated costs provided to the parties and/or their respective entities;
(b) the total amount of legal fees incurred to date;
(c) all invoices;
(d) any itemised bills that have been invoiced;
(e)copies of all correspondence to and from Mr Balian and/or K Pty Ltd since August 2019 to date.
17.Subject to the husband’s compliance with order 17 herein, upon the issue of invoices by T Lawyers:
(a) the husband provide the invoices to the wife within seven (7) days of receipt;
(b)within seven (7) days of receipt of the invoice pursuant to order 18(a) herein the wife raise any objection in writing to the husband in relation to the payment of the invoice including reasons; and
(c)in the event the wife does not raise any objection in accordance with order 18(b) herein the parties do all such acts and things to authorise the payment of the invoice from the TCF Trust Funds.
Q Street
18.The husband forthwith do all such acts and things to engage qualified builders and surveyors to rectify the building notice in relation to Q Street, Suburb S.
19.For the purposes of order 19:
(a) the parties are to contribute equally to the cost of the works up to $20,000 each;
(b)the wife make a key to the property available to the husband and/or tradespersons;
(c)the husband be restrained by injunction from removing anything from the premises.
Insurance lawyer
20.The wife be at liberty to engage a lawyer as nominated by her on behalf of K Pty Ltd to provide advice in relation to any insurance claim that has arisen.
21.For the purposes of order 21 herein:
(a)the husband do all such acts and things and sign all such documents to provide the wife with any necessary authority;
(b)within seven (7) days the husband provide copies of any documents requested by the wife;
(c) the costs be paid from the TCF Trust Funds.
Subpoenas
22.The parties be at liberty to issue unlimited subpoenas.
BB Town and Suburb O property – rental income
23.Order 10 and 11 of the orders dated 10 August 2021 be discharged.
Costs
24.The response to an application in a case filed by the husband on 10 September 2021 be dismissed and the husband pay the wife’s costs of and incidental to this application on an indemnity basis.
Annexure B
ORDERS SOUGHT BY THE HUSBAND
B Street Proceeds
1.The following Orders in relation to the proceeds of sale of B Street, Suburb D (“B Street”) remain in full effect:
(a) Orders 8 of the Orders dated 10 August 2020;
(b) Order 4 of the Orders dated 14 January 2021;
(c) Order 4 of the Orders dated 23 March 2021.
Discharge of Expenses Orders
2.Order 2 of the Orders dated 10 August 2020 and Order 2 of the Orders dated 14 January 2021 be thereafter discharged, and the Wife thereafter be solely responsible for the mortgage repayments, rates, utilities, outgoings and gardening expenses, maintenance expenses and pool servicing in relation to the M Street, Suburb O, AA Street, BB Town and R Street, City P properties.
Sale of N Street
3.Orders 5, 6, 7 and 8 of the Orders dated 14 January 2021 be discharged.
4.The parties, including in their capacity for the Balian Family Trust, do all acts and things necessary and sign all documents required to forthwith sell the property situate and known as N Street, City P in the State of Tasmania more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“N Street”) and for the purposes of the sale:
(a) the Wife shall have sole conduct of the sale of N Street.
(b)the Wife shall continue to engage Mr CC of DD Real Estate as the real estate agent (“the N Street Selling Agent”) and the Husband shall sign any documents necessary for the ongoing engagement;
(c)the reserve price be $520,000, or as otherwise agreed between the parties in writing and failing agreement as determined by the N Street Selling Agent;
(d)the method of sale be agreed between the parties and failing agreement as determined by the N Street Selling Agent;
(e)the parties shall jointly appoint a conveyancer to undertake the conveyance of the sale of N Street;
(f) the parties shall:
(i)allow inspection of N Street at all times requested by the N Street Selling Agent;
(ii)make the keys to N Street available to the N Street Selling Agent;
(iii)ensure the property is neat, clean and in good order and repair at the time of any inspection;
(g)the parties both be at liberty to communicate directly with and obtain information directly from the N Street Selling Agent, with the Wife to provide instructions.
5.Upon settlement of the sale of N Street, the proceeds be applied in the following manner and priority;
(a)first, to meet all expenses associated with the sale of N Street including agents’ fees, costs and commissions;
(b)second, to pay all rates, taxes and apportionable outgoings in respect of N Street;
(c) third, in payment of the costs of conveyance;
(d)fourth, to reimburse either party for any outstanding amount paid towards the insurance for the E Business or N Street;
(e)fifth, any outstanding staff entitlements and other debtors of the E Business PROVIDED THAT the Wife ensures that all revenue from the operation of the E Business is applied towards operating expenses;
(f)sixth, in the event N Street settles prior to the settlement of the Q Street property, to pay any cost or settlement of the Tasmanian litigation wherein the company K Pty Ltd is the First Defendant and the parties are the Second and Third Defendants; and
(g)seventh, any remaining balance be deposited into the trust account of the wife’s solicitors, Taussig Cherrie Fildes, (Bank of Melbourne BSB … Account number: … reference: Balian) to be held on trust for the parties pending further written agreement or order including in respect of payment of taxation of any gain on disposal.
6.Upon settlement of the sale for N Street, in the event the property and business are not sold as a going concern, the parties forthwith do all such acts and things to close the business trading as E Business and for that purpose:
(a)the Wife arrange for all surplus alcohol to be sold and a record of sales be provided to the Husband;
(b)the Wife arrange for the current inventory of furniture and fittings currently at N Street to be sold and a record of sales provided to the Husband and pending settlement the Wife shall not sell, gift or dispose of any furniture and fittings without the Husband’s written consent;
(c) the Wife finalise the accounts; and
(d)the Wife engage Mr EE of HH Accountants to assist with the closing of the business.
Sale of Q Street
7.Orders 9 and 10 of the Orders dated 14 January 2021 be discharged.
8.The parties, including in their capacity for the Balian Family Trust, do all acts and things necessary and sign all documents required to forthwith sell the property situate and known as Q Street, Suburb S in the State of Victoria more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“Q Street”) and for the purposes of the sale:
(a)the parties shall continue to engage Mr FF of GG Real Estate as the real estate agent (“the Q Street Selling Agent”) and sign any documents necessary for the ongoing engagement;
(b)the reserve price as agreed between the parties in writing and failing agreement as determined by the Q Street Selling Agent;
(c)the method of sale be agreed between the parties and failing agreement as determined by the Q Street Selling Agent;
(d)the parties jointly engage Mr X of W Lawyers to undertake the conveyance of the sale;
(e) The parties:
(i)allow inspection of Q Street at all times requested by the N Street Selling Agent;
(ii)make the keys to Q Street available to the Q Street Selling Agent;
(iii)ensure the property is neat, clean and in good order and repair at the time of any inspection;
(f)the parties both be at liberty to communicate directly with and obtain information directly from the Q Street Selling Agent. .
9.Upon settlement of the sale of Q Street, the proceeds be applied in the following manner and priority;
(a)First, to discharge the Westpac business loan ending …61 secured against the title to Q Street and any other arrears owed by parties and required to be discharged by Westpac;
(b)Second, to meet all expenses associated with the sale of N Street including agents’ fees, costs and commissions;
(c)Third, to pay all rates, taxes and apportionable outgoings in respect of N Street;
(d) Fourth, in payment of the costs of conveyance;
(e)Fifth, in the event that Q Street settles prior to N Street, to pay any cost or settlement of the Tasmanian litigation wherein the company K Pty Ltd is the First Defendant and the parties are the Second and Third Defendants (“the Tasmanian litigation”); and
(f)Seventh, any remaining balance be deposited into the trust account of the wife’s solicitors, Taussig Cherrie Fildes, (Bank of Melbourne BSB … Account number: … reference: Balian) to be held on trust for the parties pending further written agreement or order including in respect of payment of taxation of any gain on disposal.
Sale of U Street
10.The Husband shall have sole conduct of the sale and the Wife shall do all acts and things necessary and sign all documents required by the Husband when provided, to forthwith sell the property situate at and known as U Street, Suburb L in the State of Victoria, more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“U Street”) and for the purposes of the sale:
(a)within 48 hours the Wife sign the necessary Sales Authority to engage J Real Estate, Suburb D as the real estate agent for the sale (“the U Street Selling Agent”) and any other document requested by the Husband to facilitate the marketing for sale of U Street;
(b)the reserve price be as agreed between the parties in writing and failing agreement as determined by the U Street Selling Agent;
(c)the method of sale be agreed between the Husband and Wife and failing agreement, as determined by the U Street Selling Agent;
(d)the parties jointly engage Mr X of W Lawyers to undertake the conveyance of the sale;
(e)the parties both be at liberty to communicate directly with and obtain information directly from the Selling Agent, however the Husband is to provide instructions on behalf of the parties.
11.Upon settlement of the sale of U Street the proceeds be applied in the following manner and priority:
(a)first, to discharge the registered mortgage (Westpac Banking Corporation) secured against the title to U Street and any other arrears owed by parties and required to be discharged by Westpac;
(b)secondly, to meet all expenses associated with the sale of U Street including agents’ fees and commissions and the cost of any works recommended by the Selling Agent necessary to prepare the property for sale;
(c)thirdly, to pay all rates, taxes and apportionable outgoings in respect of U Street;
(d) fourthly, in payment of the costs of the conveyance;
(e)fifthly, the sum of $250,000 to each the Husband and the Wife by way of part property settlement;
(f)any remaining balance be deposited into the trust account of the wife’s solicitors, Taussig Cherrie Fildes, (Bank of Melbourne BSB … Account number: … reference: Balian) to be held on trust for the parties pending further written agreement or order including in respect of payment of taxation of any gain on disposal.
Application of trust funds
12.Orders 14 and 15 of the Orders dated 14 January 2021 be discharged.
13.For the purposes of Order 14 herein, the Trust Funds are the funds held on trust by Taussig Cherrie Fildes pursuant to:
(a) Order 5(f) herein (remaining N Street proceeds of sale);
(b) Order 9(f) herein (remaining Q Street proceeds of sale);
(c) Order 10(f) herein (remaining U Street proceeds of sale); and
(d)Any amount received by the parties from Westpac by way of a refund arising from the complaint lodged by the Wife (complaint number …).
14.Upon receipt of the Trust Funds into the account of Taussig Cherrie Files (“TCF”), and following the payment of all outstanding payments pursuant to Orders herein, the parties do all such acts and things to authorise the distribution of the Trust Funds in the following manner and priority:
(a) $150,000 paid to each of:
(i) The Husband via Coote Family Lawyers by way of part property settlement;
(ii) The Wife via TCF by way of part property settlement;
(b)The Applicant Husband be reimbursed any amount paid from personal funds to the Tasmanian Collection Service on behalf of the Tasmanian State Revenue Office required to satisfy the debt for the unpaid land tax and remove the Caveat dated 28 June 2021 in the name of Jonathon Charles Root, Commissioner of State Revenue;
(c)Such other expenses as agreed between the Husband and the Wife in writing via their respective solicitors.
15.The parties have liberty to apply to the Court in relation to further payments from the Trust Funds.
Payment of Legal Fees to T Lawyers
16.The proceeds of sale from the Motor Vehicle 1, held in the trust account of Coote Family Lawyers on behalf of K Pty Ltd, be immediately paid to T Lawyers for payment of all outstanding legal fees incurred to date, and the balance of funds is to be held in the trust account of T Lawyers, to be applied to future legal fees incurred by K Pty Ltd.
Completion of Tax Returns
17.Within 48 hours, the Wife produce all account details, booking and transaction history, annual earnings summary reports, and any other documents relating to any income received from leasing properties through short stay accommodation providers including but not limited to NN Company, LL Company, MM Company, KK Company and any other service providers, for the financial years ended 30 June 2016, 2017, 2018, 2019, 2021 and to date.
18.Within 48 hours, the Wife provide all other outstanding documents requested by the parties’ accountant Mr EE, required to complete the outstanding tax returns, in accordance with Orders 16 to 21 of the 14 January 2021, the timeframe for which was extended by Order 7 of the 23 March 2021 Orders.
Conduct of litigation involving K
19.In the event there is a dispute between the Husband and the Wife regarding the quantum of pay-out to be offered to Ms C in settlement of the Tasmanian litigation and the terms of any payment to be made, the parties shall abide by the recommendations of Mr F of G Lawyers.
20.Such further and other Orders as this Honourable Court deems appropriate.
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