DALCAS & NORMANTON

[2019] FCCA 225

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALCAS & NORMANTON [2019] FCCA 225

Catchwords:
FAMILY LAW – Where the parties have reached consent orders in relation to the proceedings – where the Court is satisfied the consent orders are just and equitable – consent orders made.

Legislation:

Family Law Act 1975 (Cth), ss.39B, 90SB, 90SK

Applicant: MR DALCAS

Respondent: MS NORMANTON

File Number: SYC 4411 of 2016

Judgment of: Judge Street

Hearing date: 25 January 2019

Date of Last Submission: 25 January 2019

Delivered at: Sydney

Delivered on: 25 January 2019

REPRESENTATION

Counsel for the Applicant: Ms L Mathias

Solicitors for the Applicant: Cominos Lawyers

Counsel for the Respondent: Mr R Cameron

Solicitors for the Respondent: KHQ Lawyers

ORDERS

1. That within 60 days from the date of these orders, the Applicant shall pay to the Respondent’s solicitors, KHQ Lawyers, the sum of $334,000 (the Payment) and contemporaneously with the Payment being made:

   (a)The parties shall do all acts and things and sign all documents necessary to transfer to the Applicant at the Applicant’s expense:

   (i)The property situate at and known as Property A in the State of New South Wales (Property A property); and

   (ii)The property situate at and known as Property B in the State of New South Wales (Property B property)

   (collectively referred to as the Properties)

   (b)The Applicant shall do all acts and things and sign all documents necessary to pay out the following loans secured against the Properties and refinance the Properties into the Applicant’s sole name for which the Respondent is not liable:

   (i)The Westpac Rocket Investment Loan ending #...;

   (ii)The NAB Home Loan ending #...; and

   (iii)The NAB Home Loan ending #...;

   (c)The Applicant shall do all acts and things and sign all documents necessary to remove the caveats lodged over the property situate at and known as Property C in the State of New South Wales (Property C property) at the Applicant’s expense; and

   (d)The Respondent shall do all acts and things and sign all documents necessary to remove the caveats lodged over the property situate at and known as Property D in the State of Victoria (Property D property) at the Respondent’s expense.

2. That in the event that the Applicant fails to comply with paragraph 1 herein, the parties shall do all acts and things and sign all documents necessary to effect the sale of either or both of the Properties forthwith, with the Applicant to choose which property or properties to sell, for the best price reasonably obtainable in the following manner:

   (a)Either or both of the Properties shall be listed for sale by public auctions forthwith with such agent as the parties may agree to appoint and in default of agreement as to the agent within 14 days, with such agent as the President of the Real Estate Institute of New South Wales shall appoint (the Agent) and the costs of and incidental to such appointment shall be borne by the Applicant as and when they fall due at the first instance with such costs to be reimbursed to the Applicant at settlement;

   (b)The reserve prices for the purpose of such auctions shall be such prices as may be mutually agreed upon by the parties or, in the absence of agreement reached within 14 days prior to the date of the auctions, the reserve price shall be the price nominated as the fair market value thereof by a valuer appointed by the President of the New South Wales Division of the Australian Property Institute (the Valuer) and the costs of and incidental to such appointment and valuation to be borne by the Applicant as and when they fall due at the first instance with such costs to be reimbursed to the Applicant at settlement;

   (c)The parties shall co-operate in every way with the Agent including (without limiting the generality of the foregoing):

   (i)Making the keys available to the Agent;

   (ii)Allowing inspection of either or both of the Properties at all reasonable times requested by the Agent;

   (iii)Doing or saying nothing to hinder or prevent the sales being effected;

   (iv)Ensuring either or both of the Properties including the grounds are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and

   (v)Signing all documents requested by the Agent relating to the listing for sale of either or both of the Properties, except a contract or agreement for sale which has not been authorised by the parties' solicitors.

   (d)In the event the bidding at the auctions do not reach the reserve prices for either or both of the Properties, the parties or such of them as attends the auctions may negotiate with the highest bidders or any other interested person and effect a sale of either or both of the Properties at a price which is not more than 10% below the reserve price, or such other price as the parties agree upon in writing; and

   (e)That following the settlement of either or both of the Properties the proceeds of sale shall be paid in the following manner and priority:

   (i)The amounts required to discharge the loans secured against either or both of the Properties;

   (ii)All costs and expenses of sale including legal costs and disbursements, agent's commission, advertising expenses, valuer’s fees and auction expenses, including any such amounts to be reimbursed to the Applicant in accordance with paragraphs 2.a. and 2.b. herein;

   (iii)The amounts required to pay all municipal and water rates outstanding with respect to either or both of the Properties;

   (iv)Capital Gains Tax as provided for in paragraph 3 herein;

   (v)The sum of $334,000 to the Respondent together with interest as calculated in accordance with the Family Law Rules 2004 from the date the Payment was due pursuant to paragraph 1 herein; and

   (vi)The balance to the Applicant.

3. That in the event that either or both of the Properties are required to be sold in order make the Payment to the Respondent, the Applicant shall be solely liable and indemnify the Respondent in respect of such Capital Gains Tax that the Commissioner shall assess as being payable, and an amount sufficient to cover any such Capital Gains Tax shall be held in the trust account of the Applicant’s solicitor pending payment of such sum to the Commissioner in discharge of any Capital Gains Tax liability.

4. That pending compliance with paragraph 1 herein:

   (a)The parties shall each be restrained from doing any act or thing which will have the effect of charging, mortgaging or otherwise encumbering the Properties (being the Property A property and the Property B property) including unless otherwise agreed to between the parties in writing or pursuant to these orders;

   (b)The Respondent shall pay all outgoings in relation to the Property C property including all mortgage instalments, rates, insurances and taxes as and when they fall due;

   (c)The Applicant shall pay all outgoings in relation to the Property D property including all mortgage instalments, rates, insurances and taxes as and when they fall due; and

   (d)The Applicant shall pay all outgoings in relation to the Properties (being the Property A property and the Property B property) including all mortgage instalments, rates, insurances and taxes as and when they fall due.

5. That paragraphs 6 to 10 hereof are binding upon the Applicant personally and in his capacity as director and shareholder of the trustee company known as Dalcas Pty Ltd ACN … (the Trustee) of the Dalcas Pty Ltd ATF Deeds Superannuation Fund (the Fund).

6. That there will be an allocation for the purposes of Section 90XT(4) of the Act of a base amount of $150,000 to the Respondent from the Applicant’s interest in the Fund.

7. That pursuant to Section 90XT(1)(a) of the Act:

   (a)The Respondent is entitled to a splittable payment in the sum of $150,000 made out of the Applicant’s interest in the Fund into a superannuation fund of the Respondent’s choosing; and

   (b)That there be a corresponding reduction in the entitlement that the Applicant would have had in the Fund but for these orders.

8. That paragraph 8 hereof has effect from the operative time.

9. That the operative time for the purposes of these orders is 7 days after the date of service of a copy of these orders on the Trustee.

10. That until the happening of any of the transfer or rolling over into another superannuation fund of the Respondent’s entitlements created by these orders, the Applicant shall be restrained by himself and/ or his agents from executing a binding death benefit nomination in favour of any person or doing any other act or thing that would render any part of his interests in the Fund a “non splittable payment” within the meaning of the Family Law (Superannuation) Regulations 2001 and the Trustee of the Fund shall give effect to the orders herein.

11. That unless otherwise provided for in these orders, the Applicant shall retain for his sole use and benefit:

    (a)The Property D property and its associated liabilities;

    (b)His shares and the Westpac Cash Investment Account;

    (c)His bank accounts and his cash savings contained therein;

    (d)His motor vehicle;

    (e)His aeroplane;

    (f)His eBay items and the associated proceeds of sale;

    (g)His credit card and associated credit card debts;

    (h)His outstanding eBay fees, accounting fees, and accounting audit insurance;

    (i)His superannuation entitlements; and

    (j)Any other items and chattels in his personal possession.

12. That unless otherwise provided for in these orders, the Respondent shall retain for his sole use and benefit:

    (a)The Property C property and its associated liabilities;

    (b)His bank accounts and his cash savings contained therein;

    (c)The proceeds of sale from his shares;

    (d)His personal loan with Bank;

    (e)His litigation funding loan with Bank;

    (f)His credit cards and associated credit card debts;

    (g)His superannuation entitlements; and

    (h)All other items and chattels in his personal possession.

13. Except as specifically provided for by any order to the contrary:

    (a)The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Applicant;

    (b)The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Respondent;

    (c)Each of the Applicant and the Respondent releases the other from all debts owing from one to the other; and

    (d)The parties shall sign all documents and do all things necessary to give effect to the terms of these orders.

14. Other than herein provided, the parties shall each remain the sole legal and beneficial owner of all other items of property presently in their respective possession or control, including but not limited to money, shares, shareholding in any company, real property, motor vehicles, entitlements to superannuation, furniture, furnishings and personal effects.

15. In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these orders, the Registrar of the Court or their appointee pursuant to Section 106A of the Family Law Act 1975 (Cth) may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.

16. Each party have leave to apply in respect of the implementation of any of these orders on 7 days’ notice to the other party.

IT IS NOTED that publication of this judgment under the pseudonym Dalcas & Normanton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4411 of 2016

MR DALCAS

Applicant

And

MS NORMANTON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings within the Court’s jurisdiction under s 39B of the Family Law Act1975 (Cth) (“the Act”).  The Court treats as having before it the affidavit evidence, financial statements and balance sheets, and submissions that were identified in the parties’ respective outline of case document. 

2. The Court is satisfied that there is a de facto relationship of a period that meets the jurisdictional requirements under s 90SB of the Act, and is satisfied of the geographic requirement being met in the circumstances of the present case under s 90SK of the Act. 

3. The Court is satisfied that it is appropriate to make the consent orders in the terms that have been signed by the respective parties. The Court is satisfied in all circumstances that it is just and equitable to make the proposed consent orders. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  20 February 2019