Darling & Darling

[2015] FamCA 854

FAMILY COURT OF AUSTRALIA

DARLING & DARLING & ORS [2015] FamCA 854

FAMILY LAW – ENFORCEMENT OF ORDERS – Application by the wife to enforce payment of monies owing pursuant to a Binding Financial Agreement entered into between herself and the husband – where the husband had agreed to pay reasonable solicitor/client costs incurred as a result of delayed and non-payments – where the husband had not given instructions to his solicitors to oppose or consent to the orders sought by the wife – interim orders made that the husband pay the sum owing under the Binding Financial Agreement plus interest accrued pursuant to the Family Law Rules 2004 (Cth) – interim orders made for joinder of third parties

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Darling

FIRST RESPONDENT: Mr Darling

SECOND RESPONDENT: Bendigo and Adelaide Bank Limited

THIRD RESPONDENT B Pty Ltd

FOURTH RESPONDENT: C Pty Ltd (in liquidation)

FILE NUMBER: MLC 6328 of 2007

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown QC with Mr Matta

SOLICITOR FOR THE APPLICANT: Livaditis & Co

COUNSEL FOR THE FIRST RESPONDENT: Mr Peppin

SOLICITOR FOR THE FIRST

RESPONDENT:

Kenna Teasdale

COUNSEL FOR THE SECOND RESPONDENT: Ms Gobbo

SOLICITOR FOR THE SECOND

RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE THIRD

RESPONDENT:

Mr Batrouney

SOLICITOR FOR THE THIRD

RESPONDENT:

Hall & Wilcox

COUNSEL FOR THE FOURTH

RESPONDENT:

Mr Brown

SOLICITOR FOR THE FOURTH

RESPONDENT:

Williams Winter Solicitors

Orders made 7 July 2015

IT IS ORDERED THAT

1. Leave be granted for B Pty Ltd and C Pty Ltd (in liquidation) (Receivers and Managers appointed) and Brent Leigh Morgan (in his capacity as joint and several liquidator of B Pty Ltd (in liquidation) (Receivers and Managers appointed) to be joined to these proceedings.

2. The husband, Mr Darling, pay or cause to be paid $3,930,809.58 pursuant to the Financial Agreement executed between the husband and wife dated 7 December 2010 to the solicitors for the wife on behalf the wife.

3. There is leave to the second respondent to file the affidavit of Mr D sworn 6 July 2015.

IT IS ORDERED BY CONSENT THAT 

1. The Second Respondent, Bendigo and Adelaide Bank cause the sum of  approximately  $1,900,000.00 and any interest accrued thereon (if any) being the proceeds of the E sale into an interest bearing trust account with the Bank of Melbourne in the names of:

   (a)Hall and Wilcox;

   (b)    Livaditis & Co. Lawyers & Consultants; and

   (c)    Williams Winter Solicitors.

2. The wife, third respondent (B Pty Ltd) and fourth respondent (Liquidators) forthwith do all such things and sign all necessary documents to open a Controlled Monies Trust account with the  Bank of Melbourne with the joint signatories being, Noel Batrouney (Hall and Wilcox), George Livaditis (Livaditis and Co.) and Adam Brutovic (Williams Winter) for the purpose of giving effect to order 3 hereof AND FURTHER that all monies standing in the account must not be released until further order of the Court.

3. The first respondent, third respondent and fourth respondent make, file and serve any further affidavits on or before 1 September 2015.

4. The wife make, file and serve any responding affidavit on or before 15 September 2015.

5. The fourth respondent serve their application in a case and affidavit on the parties by 8 July 2015.

6. The second respondent, upon complying with order 3 hereof, be excused from further participating from these proceedings.

7. The parties have liberty to apply.

IT IS FURTHER ORDERED THAT

1. All extant applications be adjourned to the Registrar’s Direction List at 10.00 am on 30 October 2015.

AND IT IS NOTED THAT
The parties attend upon a mediation on or before 8 October 2015 with Leslie Glick QC or such other mediator as agreed between the parties with the cost of the mediator to be paid equally by the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darling & Darling and Ors 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 6328 of 2007

Ms Darling

Applicant

And

Mr Darling

First Respondent

And

Bendigo and Adelaide Bank Limited
Second Respondent

And

B Pty Ltd
Third Respondent

And

C Pty Ltd (in liquidation)
Fourth Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me in the Judicial Duty List on 7 July 2015. It was the first return date of the wife’s Amended Application in a Case filed 29 June 2015 in which the wife sought the following orders inter alia:

   ·    that the Binding Financial Agreement the wife and the husband (the first respondent) entered into on 7 December 2010 be enforced;

   ·    that the sum of $1.9 million, held by Mills Oakley Lawyers as solicitors on behalf of the Bendigo and Adelaide Bank (the second respondent), be paid into the wife’s solicitors’ trust account;

   ·    that B Pty Ltd (the third respondent) be joined to the proceedings; and

   ·    that the husband transfer his share in B Pty Ltd to the wife, which in effect would give her control of B Pty Ltd, ultimately with the intention of giving the wife access to the monies currently held on behalf of the Bendigo and Adelaide Bank.

2. I made orders on that date that the husband pay the monies owing pursuant to the Binding Financial Agreement and reserved my reasons with respect to those orders. These are those reasons.

3. The husband and the wife were married in 1972 and separated on 1 March 2006. There are three adult children of their marriage, albeit the youngest child, who lives with the wife, suffers from a rare form of Parkinson’s Disease and requires full time care and is financially dependent on the wife. The husband has been living in Country F since February 2013 and has not returned to Australia since that date. He has substantial business interests overseas. The two eldest children of the marriage live with the husband in Country F.

4. Pursuant to the Binding Financial Agreement dated 7 December 2010 the husband was required to pay the wife $10 million in the following instalments:

   a)$2 million on or before 31 October 2011;

   b)$2 million on or before 31 October 2012;

   c)$2.5 million on or before 31 October 2013;

   d)$2.5 million on or before 31 October 2014; and

   e)$1 million on or before 31 October 2015.

5. The wife’s solicitor deposes in an affidavit sworn 11 June 2015 and filed in support of the wife’s application that the husband has paid the first two instalments but that he has only paid $1.5 million of the third instalment. The balance of that third instalment still outstanding is $1 million together with interest calculated in accordance with the Family Law Rules 2004 (Cth) as at the date the affidavit was sworn of $194,230 and accruing at the rate of $232,87 per day on the $1 million still outstanding.

6. The wife’s solicitor deposes to there being  interest of $129,828 as at the date the affidavit was sworn on the sum of $2.5 million outstanding since 31 October 2014 which is accruing at the rate of $582 per day. 

7. The wife’s solicitor also deposed that the husband had agreed to pay the reasonable solicitor/client costs incurred by the wife as a result of his failure to pay the second instalment by the due date, that an account of $46,751 was accordingly rendered to the husband on 23 January 2013, but that those costs have not been paid by the husband. It is the wife’s solicitor’s evidence that the husband also agreed to pay the costs incurred by the wife as a result of his failure to pay the third instalment by the due date, and the part payment of that instalment, estimated to be $60,000. It was on that basis that the wife sought an order that the husband pay the sum of $3,930,809.58.

8. The husband’s solicitor appeared on his behalf at the hearing on the basis that he said he had instructions to appear, but did not have instructions to either oppose or consent to the orders sought by the wife, in particular the order that she sought requiring him to pay the sum of $3,930,809.58 to the wife. I am satisfied, the husband being aware of the proceedings, having instructed his solicitors to appear on his behalf and having not opposed the order sought by the wife, that I should make the order sought by the wife.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 October 2015.

Associate: 

Date:  12 October 2015