Comardelle and Comardelle and Anor

[2014] FamCA 560

FAMILY COURT OF AUSTRALIA

COMARDELLE & COMARDELLE AND ANOR [2014] FamCA 560

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the parties entered into consent orders – Where there is no evidence to show the husband has the ability to fulfil his obligations pursuant to the orders – Where the orders do not provide a means of enforcement for the wife – Where the Court declines to make the orders sought.

Family Law Act 1975 (Cth) s79

APPLICANT: Ms Comardelle

RESPONDENT: Mr Comardelle

INTERVENER: B Pty Ltd

FILE NUMBER: SYC 1668 of 2012

DATE DELIVERED: 14 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Mr Shehadie

COUNSEL FOR THE INTERVENER: No Appearance

SOLICITOR FOR THE INTERVENER: No Appearance

Orders

IT IS ORDERED

1. That the application is stood over for mention only on 27 October 2014 at 10 am before the Honourable Justice Rees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Comardelle & Comardelle 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 SYDNEY

FILE NUMBER: SYC 1668 of 2012

Ms Comardelle

Applicant

And

Mr Comardelle

Respondent

And

B Pty Ltd

Intervener

REASONS FOR JUDGMENT

1. The matter of Comardelle is listed before me today for a three day hearing in relation to property settlement.

2. The parties are the applicant wife, Ms Comardelle (“the wife”); the respondent husband, Mr Comardelle (“the husband”); and the intervener B Pty Ltd (“the intervener”). 

3. The intervener is a company which holds shares in Comardelle Pty Limited (“Comardelle”), the other shareholder being the husband. The intervener therefore has an interest in the enterprise of Comardelle.

4. In the week prior to the hearing, the parties indicated to the Court that the matter had been settled. Short minutes of orders, executed by the husband, the wife and the intervener, were forwarded to the Court.

5. The husband, the wife and the intervener were advised that I was not prepared to make the orders upon which they had agreed and that the hearing of the matter would commence as scheduled.

6. At 10.00 am on the first day of the hearing there was no appearance by the husband, the wife or the intervener. The wife is not represented. After some time, the solicitor for the husband appeared and advised the Court that he was also instructed to mention the matter on behalf of the solicitor for the intervener.

7. The solicitor for the husband had prepared written submissions and made oral submissions in relation to the proposed settlement.

8. There are two substantial assets of the wife and the husband. The wife is the registered proprietor of a residential property near C Town with an agreed value of $970,000 (“the property”). The property is security for advances to the husband by the National Australia Bank (“NAB”) in relation which $520,000 remains outstanding. The NAB has a first mortgage over the property (“the mortgage”).

9. The husband’s interest in Comardelle is the only other substantial asset. His interest is valued at approximately $3,000,000 and is encumbered by fixed and floating charges in favour of the NAB securing advances well in excess of its value.

10. The minute of orders provides that the husband, within two years from the date of the orders, is to cause to be discharged the mortgage over the property. The scheme of the orders is that the husband is to cause the mortgage to be discharged and to cause the NAB to release the wife from her guarantee, and to deliver the certificate of title to her so that she will have an unencumbered title to the property.

11. On the discharge of the mortgage and the release of the wife from her guarantee, she is to transfer to the husband the superannuation interests in his name which she now owns pursuant to interim property orders.

12. There is no evidence before me which suggests that the husband has the ability to find the sum of $520,000 to discharge the mortgage within two years. The solicitor for the husband said that the husband hoped to be able to trade Comardelle out of its present difficulties.

13. There is no scheme in the orders for enforcement. It was conceded by the solicitor for the husband that there is no security or guarantee that the husband can give for the enforcement of the orders. 

14. If, at the end of the two year period, the husband has not discharged the mortgage and been able to secure clear title for the wife there is not, on the face of the documents or on my understanding of the facts of this matter, any basis upon which the wife would be in a position to enforce the orders.

15. The wife would be left with her rights under s 79 of the Family Law Act 1975 (Cth) (“the Act”) having been exhausted and with no method of obtaining an enforcement of the orders. At best, it is submitted on behalf of the husband, she would have the husband’s superannuation which could be liquidated and applied to reduce the mortgage debt to a level she may be able to service. Whether that situation would commend itself to the NAB is another matter.

16. The parties will not be left without any resolution. The Act contains provision for the finalisation of property matters without the imprimatur of the Court if that is the course they wish to take.

17. Accordingly, I propose to stand the matter over for mention only. In the event that the matter is resolved by a means other than orders of the Court, it can be removed from the list.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 July 2014.

Associate: 

Date:  14 July 2014