Canning and Peel and Anor

[2013] FamCA 1136

FAMILY COURT OF AUSTRALIA

CANNING & PEEL AND ANOR [2013] FamCA 1136

FAMILY LAW – PROPERTY – Final orders by consent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Canning

FIRST RESPONDENT: Mr Peel

SECOND RESPONDENT:  B Pty Ltd

FILE NUMBER: MLC 7164 of 2011

DATE DELIVERED: 23 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Spender

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE FIRST RESPONDENT: Mr Crofts

SOLICITOR FOR THE FIRST RESPONDENT: Nicholes Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Ms Peel in person

SOLICITOR FOR THE SECOND RESPONDENT: N/A

ORDERS

BY CONSENT IT IS ORDERED
Formal Matters

1. That pursuant to s 90RD of the Family Law Act 1975 (as amended) (“the Act”), this Honourable Court declares that:

   a)The applicant and the respondent lived together in a de facto relationship (“the de facto relationship”) for the period commencing on or about 18 August 1994 and concluding on 9 August 2011 (“the period”);

   b)That each of the applicant and the respondent (“the parties to the de facto relationship”) was ordinarily resident in the State of Victoria at all times during the period; and

   c)That the de facto relationship broke down on 9 August 2011. 

2. That these orders are:

   a)Orders for maintenance as between the applicant and the respondent pursuant to s 90SF of the Act; and

   b)Otherwise final orders for property settlement made pursuant to s 90SM of the Act.

3. That B Pty. Ltd. (ACN 007 716 074) (“B”), of C Street, Suburb D in the State of South Australia,  be joined as the second respondent to these proceedings.

4. That this Honourable Court declares that pursuant to s 90AE(3), s 90AF(3), and s 90TA of the Act:

   a)The making of orders pursuant to s 90AE (1)-(2), s 90AF (1)-(2), and s 90TA of the Act is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the de facto relationship; and

   b)In so far as these orders concern a debt of the parties to the de facto relationship, or either of them, it is not foreseeable at the time that these orders are made that to make these orders would result in the debt not being paid in full; and

   c)B Pty Ltd has been accorded procedural fairness in relation to the making of the orders; and

   d)This Honourable Court is satisfied that, in all the circumstances, it is just and equitable to make these orders; and

   e)This Honourable Court is satisfied that these orders take into account the matters mentioned in s 90AE (4) and s 90AF (4) of the Act.

The maintenance payment and the Interim Maintenance Orders

1. That pursuant to paragraph 1 of the Orders dated 7 June 2013, the respondent pay to the applicant the sum of one hundred thousand dollars ($100,000) receipt of which is hereby acknowledged by the applicant (“the maintenance payment”). 

2. That subject to the terms of paragraph 7, the maintenance payment referred to in paragraph 5 hereof shall be regarded as payment in full by the respondent of the payments required to be made by him to maintain the applicant pursuant to:

   a)Paragraphs 3, 4 and 9 respectively of the Orders dated 28 November 2011; and

   b)Paragraph 7 of the Orders dated 5 October 2012 (“the Interim Maintenance Orders”); and

   c)Any other present or future entitlement to maintenance up until the payment in full of the respondents obligations pursuant to paragraph 11 hereof (and the date upon which payment in full is made shall hereinafter be referred to as “the property completion date”); and accordingly:

   d)all arrears (if any) of maintenance (including any associated interest thereon) pursuant to the Interim Maintenance Orders as at the date of these orders shall be and are hereby discharged; and

   e)subject to the terms of paragraphs 7 hereof, the operation of the Interim Maintenance Orders will be suspended pending payment in full of the respondent’s obligations pursuant to paragraph 11.

3. That in the event that the respondent or the second respondent remains in default of any one of the respondent’s obligations or the second respondent’s obligations pursuant to paragraph 11 hereof for a period in excess of forty five (45) days, then paragraph 3 of the orders made on 28 November 2011 will be reinstated until the respondent’s default is remedied.

Applicant’s mobile telephone account

1. That the applicant be solely responsible for making all payments in relation to her mobile telephone account (being for telephone number 0407 366 929) previously paid for on her behalf by E Pty Ltd (ACN 007 645 810) (“E Pty Ltd”) and neither party will make any claims against the other for payments with respect to the said mobile telephone account prior to the date of these orders (and in the event E Pty Ltd makes a claim for such expenses prior to the date of these orders the respondent indemnify the applicant against such payments and make such payments if necessary). 

The applicant’s European motor vehicle and associated expenses

1. That within thirty (30) days of the date of these Orders, the respondent will cause E Pty Ltd to transfer to the applicant, at her expense, the European motor vehicle currently in the applicant’s possession registration number … (“the European motor vehicle”). 

2. That applicant will pay and indemnify E Pty Ltd and keep E Pty Ltd so indemnified against all payments associated with the European motor vehicle of whatsoever nature and kind and neither party will make any claims against the other for payments with respect to the said vehicle prior to the date of these orders (and in the event E Pty Ltd makes a claim for such expenses prior to the date of these orders the respondent indemnify the applicant against such payments and make such payments if necessary).

Property Settlement
The Total Property Settlement Payment

1. That the respondent pay or cause to be paid to the applicant by way of final property settlement a total sum of $6,000,000 (“six million dollars”) (“the total property settlement payment”) as follows:

   a)On 30 September, 2013 the sum of $1,250,000 (“the first property settlement payment”);

   b)On or before 30 October, 2013 the sum of $500,000 (“the October payment”);

   c)On 30 November 2013 the sum of $250,000 (“the November payment”);

   d)On the last business day of January, 2014 and on the last business day of each the following fifteen months thereafter (being sixteen such payments in total) the sum of $250,000 (“the periodic payments”);

   (and the payments referred in sub-paragraphs b., c., and d., hereof are hereafter referred to, collectively, as “the monthly property settlement payment(s)”).

2. The first property settlement payment and the monthly property settlement payment(s) shall, unless otherwise provided for by these orders be paid to a bank account nominated in writing by the applicant from time to time, such nomination in writing, in relation to the first property settlement payment, to be served on the respondent via his solicitors within 48 hours of the making of these orders and, in relation to the monthly property settlement payment(s), not less than 7 days before the first payment to be effected by such nomination is due.

Contemporaneous obligations with the first property settlement payment

1. That contemporaneously with the making of the first property settlement payment pursuant to paragraph 11 hereof:

F Pty Ltd shares

a)The applicant will transfer to the respondent, at his expense, all the applicant’s interest in F Pty Ltd Pty Ltd (ACN …) (“F Pty Ltd”);

Syndicates

b)In the event that the applicant is a member of a syndicate in which the respondent or any member of the respondent’s family has an interest, the applicant will forthwith do all acts and things and sign all documents to resign from same;

Chattels

c)On or before 30 September 2013 (or such other date as is agreed) the applicant will collect the following items from the Suburb G property and thereafter retain them as her property to the exclusion of the respondent:

i.The dining table and chairs;

ii.The sideboard;

iii.The tea sets;

iv.A coffee set;

v.Two platters from the sideboard;

vi.A lace tablecloth;

vii.A dinner set; and

viii.The trolley in the family room.

and the respondent shall ensure that such items are accessible and available for collection provided the applicant gives the respondent reasonable notice of her attendance.

Discharge of mortgages on Security Properties

d)The second respondent will discharge any mortgage or other encumbrances (and provide to the applicant, or her lawyers, proof of such discharges) over the properties known as and situate at:

i.H Street, Suburb I, in the State of South Australia being the land more particularly described in Certificate of Title Volume … Folios …, … and … (“H Street property”); and

ii.J Street, Suburb K, in the State of New South Wales being the land more particularly described in Certificate of Title Volume  … Folio … (or Auto-Consol …) and Folio Identifiers …, … and … (“the J Street property”).

Obligations pending compliance with paragraph 11

1. That save as provided for in these orders, pending the respondent making or causing to be made the total property settlement payment pursuant to paragraph 11 hereof:

   a)The respondent will have the sole right to occupy the property known as and situate at L Street, Suburb G being the land more particularly described in Certificate of Title Volume … Folio … (“the Suburb G property”)  and during such right of occupation shall pay, or cause to be paid, all instalments pursuant to the existing ANZ mortgage (“the ANZ mortgage”) and all other rates, taxes, and outgoings of the Suburb G property;

   b)The second respondent will have the sole right to occupy or lease on commercial terms H Street property and the J Street property and shall pay or cause to be paid all rates, taxes and other outgoings on such properties;.

   c)Neither the applicant nor the respondent will further encumber the Suburb G property without first obtaining the consent in writing of each other, save that the respondent may borrow against the title of the Suburb G property solely up to the amount of the first property settlement payment, and for the purposes of making the first property settlement payment.  In the event the respondent does so he will provide proof of same to the applicant;

   d)Save as provided for by these Orders the second respondent is and hereby is restrained from encumbering either  H Street property or the J Street property;

   e)The respondent shall be and is hereby restrained from selling the Suburb G property or transferring or dealing with the interest of the respondent in the Suburb G property other than for the purposes of giving effect to a default sale pursuant to paragraph 18 or borrowing pursuant to sub-paragraph c. hereof;

   f)The second respondent shall be and is hereby restrained from selling H Street property or the J Street property or transferring or dealing with its fee simple interest in any of the said properties, other than for the purposes of giving effect to a default sale pursuant to paragraph 18 hereof;

   g)The applicant shall be entitled to better secure the payment of the total property settlement payment by lodging a caveat against:

   1.The title to the Suburb G property pursuant to this order; and

   2.The title to each of H Street property and the J Street property pursuant to this order.

2. That:

   a)Upon the respondent having paid or caused to be paid to the applicant $2,500,000 of the total property settlement payment, (and any interest applicable to any late payment of same) and in circumstances where the Suburb G property has not been encumbered pursuant to paragraph 14(c) hereof, the applicant will provide to the second respondent a withdrawal of any caveat lodged against the title to the J Street property, and the provisions of paragraphs 14 and 18 will cease to apply to the J Street property;

   b)Upon the respondent having paid or caused to be paid to the applicant $3,500,000 of the total property settlement payment, (and any interest applicable to any late payment of same) and in circumstances where the Suburb G property has been encumbered pursuant to paragraph 14(c) hereof,  the applicant will provide to the second respondent a withdrawal of any caveat lodged against the title to the J Street property, and the provisions of paragraphs 14 and 18 will cease to apply to the J Street property;

   c)Upon the respondent having paid or caused to be paid to the applicant $4,500,000 of the total property settlement payment, (and any interest applicable to any late payment of same), and in circumstances where the Suburb G property has not been encumbered pursuant to paragraph 14(c) hereof, the applicant will provide to the second respondent a withdrawal of any caveat lodged against the title to H Street property, and the provisions of paragraphs 14 and 18 will cease to apply to H Street property;

   d)Upon the respondent having paid or caused to be paid to the applicant $5,500,000 of the total property settlement payment, (and any interest applicable to any late payment of same) and in circumstances where the Suburb G property has been encumbered pursuant to paragraph 14(c) hereof, the applicant will provide to the second respondent a withdrawal of any caveat lodged against the title to H Street property, and the provisions of paragraphs 14 and 18 will cease to apply to H Street property;

Interest payments to the applicant during any period(s) of non-compliance with paragraph 11 hereof

1. That in the event there is non-compliance by the respondent with any part of paragraph 11 hereof for a period of 10 days or more, then for a period commencing on the date when the first property settlement payment or the particular monthly property settlement payment(s) was originally due and concluding on the day when the first or particular monthly property settlement payment(s) which is then outstanding is paid in full to the applicant (“the default period”); the respondent shall pay or cause to be paid to the applicant interest on the first or particular monthly property settlement payment(s) or any part thereof, which is, or are, then outstanding (“the outstanding amount or amounts”) as follows:

   a)Interest on the outstanding amount or amounts shall be calculated at the rate applicable from time to time pursuant to the Family Law Rules 2004 (“the default interest”);

   b)The default interest shall be paid to the applicant:

   1.Subject to sub-paragraph 16(b)(3) hereof, on a monthly basis and on or before the 15^th day of any calendar month; and

   2.Into a bank account nominated in writing by the applicant to the respondent from time to time; and

   3.In the event of the whole or any part of the first property settlement payment or the particular monthly property settlement payment(s) being paid in full to the applicant, the respondent will cause any interest which has accrued since the making of the last monthly interest payment to the applicant to also be paid to her at the same time.

Sale on Non-Compliance with Paragraphs 11 and 16

1. That in the event of:

   a)non-compliance by the respondent or the second respondent with any part of paragraphs 11 or 16 for a period exceeding 30 days of the relevant date or dates specified therein and on the applicant subsequently giving not less than 14 days written notice of such default to the respondent and second respondent without such non- compliance being rectified; or

   b)B Pty Ltd entering into administration, liquidation, or else being deregistered;

   (hereinafter referred to as “a property settlement payment default event”) then, subject to any written agreement between the applicant’s lawyers and the lawyers for the respondent to the contrary, the whole of the total property settlement payment which is then outstanding, together with any interest payable and unpaid by reason of the default, will be due and payable to the applicant by or on behalf of the respondent.

2. That in the event of a property settlement payment default event pursuant to paragraph 17 hereof:

   a)Each of the parties will do all such acts and things and sign all such documents as may be necessary to cause the Suburb G property to be sold (“the Suburb G default sale”), and that upon completion of the Suburb G default sale, each will cause the proceeds of same to be applied and paid as follows:

   1.First to pay all costs, commissions and expenses of the Suburb G default sale;

   2.Secondly, to discharge the ANZ mortgage and any other mortgage which is then encumbering the Suburb G property, and taken out by virtue of paragraph 14(c) hereof;

   3.Thirdly, to pay the applicant:

   i.So much of the total property settlement payment as is then outstanding; and

   ii.Interest, which has accrued and is outstanding on all or any part of the first property settlement payment and any particular monthly property settlement payment(s) calculated pursuant to paragraph 16; and

   4.Fourthly, the balance then remaining (if any) to the respondent.

   b)the second respondent will do such acts and things and sign all such documents to enable the applicant to sell as its agent in order of priority:

   1.H Street property; and

   2.the J Street property

   (“the second respondent’s default sales’)

   and upon completion of the second respondent’s default sales, cause the proceeds of sale to be applied as follows:

   i.First to pay all costs, commission and expenses of the second respondent’s default sales;

   ii.Second, to pay the applicant:

   a)so much of the total property settlement payment as is then outstanding, and

   b)Interest, which has accrued and is outstanding on the first property settlement payment and all or any particular monthly property settlement payment(s) calculated pursuant to paragraph 16.

3. The provisions of paragraphs 18(a) and (b) hereof shall not apply to a property which has been released from obligations under these orders pursuant to paragraph 15 hereof prior to the property settlement payment default event occurring.

4. That liberty be reserved to each of the applicant and the respondent to apply with respect to the terms and conditions of the Suburb G default sale or the second respondent’s default sales.

Applicant’s Acts on Compliance with Orders

1. That pending compliance with these orders and forthwith on all payments being made to the applicant as required by these orders the applicant will save as provided for herein forego any other claim to any entity in which the respondent has an interest (known, collectively, as “the Peel Group”). 

2. That forthwith, on all payments being made to the applicant as required by these orders:

   a)The applicant will forever relinquish, transfer and assign to the respondent or his nominee, any and all share-holdings and interests (including but not limited to any loan account) which she may have had and resign from any office-bearing position which she had in any company, trust or other entity within the Peel Group;

   b)The respondent’s and B Pty Ltd’s obligations pursuant to paragraphs 14 and 18 hereof and the restraints upon them pursuant to paragraph 14 hereof be and are hereby discharged; and

   c)The applicant’s entitlements pursuant to paragraph 7 hereof be and are hereby discharged;

   d)The Interim Maintenance Orders and, subject to any other orders of this Honourable Court, any subsequent maintenance orders will be hereby discharged.

1. That contemporaneously with the first property settlement payment the applicant shall transfer to the respondent at the respondent’s expense all her right title and interest in the Suburb G property, save that the applicant may continue, pursuant to paragraph 14(g) maintain a caveat against the title of the Suburb G property until receipt by the applicant in full of the total property settlement payment (plus any interest applicable to any late payment).

General

1. That subject to the preceding provisions of these orders, the respondent otherwise retain the following to the exclusion of the applicant:

   a)The respondent’s interest in the Peel Group;

   b)All superannuation entitlements in his name;

   c)All savings in all bank accounts in his name;

   d)All shareholdings and investments in his name;

   e)All sums owed to the respondent by his daughter, Ms M; and

   f)All other furniture, assets and property in his name, possession, custody and control (with the furniture and other chattels within the Suburb G property, save those referred to in sub-paragraph 13(c) hereof, being deemed to be in the possession of the applicant).

2. That subject to the preceding provisions of these orders, the applicant otherwise retain the following to the exclusion of the respondent:

   a)The sums paid to her by or on behalf of the respondent pursuant to all interim orders in these proceedings;

   b)All savings in all bank accounts in her name;

   c)All shareholdings and investments in her name; and

   d)All other furniture, assets and property in her name, possession, custody and control.

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

   a)Each of the applicant and the respondent be solely entitled to the exclusion of the other to all other property (including choses in action) in their current possession, ownership or control, including the balance and proceeds of bank accounts in the respective names of each of them;

   b)Each of the applicant and the respondent will be equally entitled to the balance and proceeds of any bank account in their joint names and, on or before the first date, will do all such things as may be necessary to pay one half of the balance and proceeds of each such bank account to each of them, and will close each and every such bank account;

   c)Each of the applicant and the respondent forego any other claims they may have to any superannuation benefits belonging to, earned by or accrued for        the other party to the de facto relationship;

   d)Insurance policies of the applicant and the respondent remain the sole property of the owner named thereon;

   e)Each of the applicant and the respondent be solely liable for and indemnify the other against and secure the release of the other from any liability whether past, present or future, encumbering or pertaining to any item of property or any superannuation entitlement to which that party is entitled pursuant to these orders; and 

   f)Any joint tenancy of the applicant and the respondent in any real or personal property is hereby expressly severed.

4. That each party do all acts and things and sign all such documents as may be reasonably requested by another party for the purposes of giving effect to these orders.

5. That these orders are and shall be binding on the parties, their heirs, executors and assigns.

6. That save as may be provided for in these orders:

   a)All interim orders in these proceedings are discharged; and

   b)All extant applications are hereby dismissed.  

IT IS CERTIFIED:

1. That this is a matter which reasonably required the engagement of Counsel or solicitor acting as Counsel.

IT IS DIRECTED THAT:

1. The Minutes of Final Consent Orders remain on the Court file.  

2. All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

AND THE COURT NOTES:

A.That pursuant to s 90ST of the Family Law Act 1975 (“the Act”) the parties intend these Orders shall, as far as practicable, determine the financial relationships between them and avoid further proceedings between them.

B.The parties have agreed on the making of these Orders to enter into a Part VIIIAB Financial Agreement pursuant to s 90UD of the Act, excluding the claims of either of them to seek maintenance from the other party for the period subsequent to the compliance in full with the total property settlement payment, with the said Agreement to otherwise be consistent with the terms of these Orders.

C.The parties agree that it is just and equitable for this Honourable Court to make orders dividing or adjusting their property and superannuation entitlements and that these orders effect a just and equitable division of same.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7164 of 2011

Ms Canning

Applicant

And

Mr Peel

First Respondent

And

B Pty Ltd
Second Respondent

REASONS

1. The parties in this case commenced a de facto relationship on or about 18 August 1994. That relationship broke down on 9 August 2011. Whilst both parties had been previously married and each have children of those marriages, there are no children of this relationship. I am satisfied that the parties lived in a de facto relationship as defined and for the prescribed period by the Family Law Act1975 (Cth).

2. The parties have been involved in a lengthy process of mediation and negotiation. As part of that process, the wife obtained a valuation of the husband’s business interests which I will describe as the “Peel Group”.  On the basis of that valuation, she places a value on the assets of the parties of approximately $55 million.  The husband, whilst he disputes that valuation, had not, on the basis that the parties were engaged in mediation, obtained his own valuation. He estimates the assets to have a value of somewhere between $35 million and $40 million. 

3. The parties have been represented by experienced solicitors and counsel. They have taken a pragmatic approach to the resolution of the matter.  The proposed orders provide for a payment by the husband to the wife of $6 million to be paid over a period of some 18 months, leaving the wife ultimately holding assets of approximately $6.7 million on the basis of the values ascribed to them by the wife.  On the basis of the various estimates of values, that is somewhere between 11 per cent and 18 per cent of the available assets. 

4. The parties consent to these orders and ask that I make the orders in the terms they seek.  I am satisfied that they would appear to be within range, bearing in mind that there is some difference in the values they place on the property. 

5. The other relevant matter with respect to these orders is that, for the purposes of providing security for the orders is that as the assets are largely tied up in the Peel Group, B Pty Ltd is to be joined as a respondent to the proceedings. Ms M Peel, who is a director of B Pty Ltd, appears today and has told me that she understands the orders, consents to being joined as a party to the proceedings for the purposes of making the orders and consents to those orders. 

6. I am satisfied in all of the circumstances that it is just and equitable to make the orders sought and that these orders are just and equitable.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 August 2013.

Associate: 

Date:  12 August 2014