Degan & Nader
[2023] FedCFamC1F 341
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Degan & Nader [2023] FedCFamC1F 341
File number(s): NCC 4292 of 2021 Judgment of: SMITH J Date of judgment: 24 April 2023 Catchwords: FAMILY LAW – practice and procedure - joinder of additional parties – husband sole registered owner of former matrimonial home – husband’s parents and sister allege he owes them sizeable debts which are enforceable against the former matrimonial home – wife disputes debts - husband’s parents and sister commence proceedings in Supreme Court of NSW against husband for possession of former matrimonial home and debts and interest – husband and his parents and sister enter consent judgment for possession and for alleged debts and interest – former matrimonial home placed on market – wife seeks joinder of husband’s parents and sister to these proceedings – application resisted: Husband’s parents and sister joined as second, third and fourth respondents.
FAMILY LAW – urgent interim injunction – wife seeks injunction to stop sale of former matrimonial home - or alternatively to preserve sale proceeds from distribution – wife not living in former matrimonial home – no disadvantage to wife in sale – sale process may proceed: Interim injunctions against husband, husband’s parents and sister from dealing with net sale proceeds from sale of former matrimonial home until further order of this Court.
Legislation: Family Law Act 1975 (Cth) ss 106B, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.03
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 21 April 2023 Place: Newcastle via Microsoft Teams Solicitor for the Applicant: No formal appearance - was present on Microsoft Teams Solicitor for the First Respondent: Robertson Saxton Osborne Solicitor for the Second, Third and Fourth Respondents: Kazi Portolesi Lawyers Solicitor for the Independent Children's Lawyer: Excused from appearing ORDERS
NCC 4292 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEGAN
Applicant
AND: MS NADER
First Respondent
MR B DEGAN
Second Respondent
MS C DEGAN (and another named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
24 APRIL 2023
THE COURT ORDERS THAT:
1.The matter be listed on 25 May 2023 at 10:00am by Microsoft Teams for further mention in relation to the First Respondents Application in a Proceeding filed 19 April 2023.
2.Mr B Degan, Ms C Degan and Ms D Degan be joined to this proceeding as the Second, Third and Fourth Respondents respectively.
3.The First Respondent is to file her amended Application in a Proceeding and any consolidated Affidavit and documentary evidence in support of her Application within 14 days.
4.The Applicant, Second Respondent, Third Respondent and Fourth Respondent are each to file any Response and Affidavit and other evidence within 6 weeks.
5.The parties and each of them is granted liberty to apply in chambers to ...@... for an urgent relisting of the matter.
6.The Applicant is to notify the First Respondent in writing within 48 hours of the exchange of any contract for sale of the E Town Property and to provide a copy of the executed Contract for Sale.
7.Reserve all parties costs of today.
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
8.That each of the Applicant, the Second Respondent, the Third Respondent and the Fourth Respondent be restrained by injunction from distributing or disposing of any net sale proceeds of the property situated at and known as F Street, E Town NSW (“E Town Property”) after its sale without further order of this Court.
(a)For the purpose of these orders “net sale proceeds” are those monies remaining from the sale of the E Town Property on settlement after discharge of the currently registered mortgage to Westpac Banking Corporation, the payment of any usual agent's commission, auctioneers fees, advertising expenses payable on the sale, solicitors or conveyancers costs on the sale, and statutory charges running with the land necessary to be paid in order to effect a good transfer of the land to any purchaser.
THE COURT NOTES THAT:
A.The Applicant provided a medical certificate dated 21 April 2023 excusing him from attending today’s mention as a result of a work related injury. It is noted that the Applicant dialled in from hospital and is aware of the Injunction.
B.The E Town Property is presently on the market. The Court was informed that it is having its first open for inspection tomorrow.
C.The Court anticipates that there will be a fuller Hearing on the issue of the appropriate orders for preservation of the disputed property prior to settlement of any sale.
D.It is noted that the next mention date may be before the evidence has been filed. As Justice Smith will be away for most of June the court will allocate the matter to another Justice so that there is a judicial officer seized of the issues and available to deal with the matter urgently if and when required.
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 Degan & Nader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This matter has been listed before me today on an urgent basis in de facto property proceeding under the Family Law Act 1975 (Cth) (the Act).
Ms Nader (“the wife”), the applicant before me but the respondent in the substantive proceedings, filed an Application in a Proceeding on 19 April 2023 seeking urgent injunctive relief to prevent the dispersal by the husband of the majority of the matrimonial assets the subject of these proceedings. The wife’s application is supported by an affidavit sworn and filed the same date. Urgency of listing was sought and granted.
The wife and Mr Degan (“the husband”), the applicant in the proceedings but the respondent today, were in a de facto relationship. They have two children. They lived in the former matrimonial home at F Street, E Town (“the former matrimonial home”). That property was valued by a single expert in early 2022 at $1.375 million. That is the great majority of the net asset pool.
The former matrimonial home is in the husband’s sole name. The husband asserts that his parents, Mr B Degan and Ms C Degan (“the husband’s parents”), loaned him monies and that these monies are a legal debt which is repayable now and secured over the former matrimonial home though not by registered mortgage. The wife disputes that. That is a major fact in issue between the husband and wife in these proceedings, which I note were commenced in 2021. The husband also says that his sister, Ms D Degan loaned him a lesser sum which he says is similarly repayable and secured against the former matrimonial home. That is also in dispute in these proceedings.
The husband’s parents and Ms D Degan commenced proceedings against the husband in the Supreme Court of New South Wales. The husband consented to the filing of Consent Orders in early 2023 granting the husband’s parents and Ms D Degan possession of the former matrimonial home and judgements for substantial amounts, which would be close to the value of the former matrimonial home.
In effect the wife’s case is that the husband and his parents and Ms D Degan have gone to the Supreme Court of NSW and filed a documents agreeing to what they want for the purpose of circumventing and defeating this Court’s properly invoked jurisdiction.
There has not been a contested hearing in the Supreme Court, so it is not clear that any estoppel arises.
A fact in issue in these proceedings is, and has been, whether or not there is a legally recoverable loan between the husband and his parents and between the husband and Ms D Degan. Now, I note that there does appear to be a loan document, which appears to be witnessed by a barrister in 2018, so there may very well be validity to the husband’s argument in respect of the smaller loan also said to exist to Ms D Degan and the wife will have to think about that. There is another document relating to the husband’s parents alleged loan, but not independently witnessed. In any event, these are all matters in issue and for determination in this proceeding.
The wife’s first application is to join Mr B Degan, Ms C Degan and Ms D Degan to these proceedings.
It is submitted for the husband’s parents and Ms D Degan, who were legally represented today but who have not had the opportunity to file material, that because Supreme Court Consent Orders have been entered this Court either does not have jurisdiction to join them, or should not exercise the discretion to allow their joinder. I reject those arguments.
Running off to another Court and having consent orders entered on the issues in dispute in proceedings in this Court does not defeat this Court’s broad jurisdiction, including to address a transaction to defeat a claim, see s 106B of the Act. If there had been a fully contested hearing and a decision of the Supreme Court of NSW, then the position might well be different.
In these circumstances, I am satisfied that the provisions of rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been met and I make orders in accordance with Order 3 of the wife’s proposed orders joining them, noting that the second, third, and fourth respondents were legally represented here today.
The wife also sought orders to stop the sale of the former matrimonial home, but she isn’t in it and agrees the property needs to be sold, so the real issue is protecting the net equity after sale. For that reason I will not stop the sale process, but I am satisfied that it is appropriate, at least for now and until further order, to make injunctions pursuant to section 114 of the Act directed to the husband’s parents and Ms D Degan to preserve the subject matter of this proceeding by making sure that the net sale proceeds are not disbursed without a further hearing.
I offered the now second, third, and fourth respondents the opportunity to address me concerning a proposed interim order that, in the event that the property was to sell and settle, there would be an injunction against paying out the alleged loans, on the basis that the residue of the proceeds of the sale of the parties’ former residence then to be held in a solicitors’ trust account post sale in the usual way. Through their solicitor, without agreeing to the injunction, given that I am going to make the injunction to preserve the property pending further order, this was a course of action they agreed was appropriate.
I am told the property is just on the market and having its first open inspection. In the usual course, this matter should be back before me well before a sale can settle in any event.
The husband did not formally appear before me today but was present and listening on-line from hospital and so is also on notice of the injunction. I do not consider that the interim orders I will make today will disadvantage him.
There will be orders for the filing of evidence. The matter will come back before me on 25 May for mention.
Those are my reasons.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 5 May 2023
SCHEDULE OF PARTIES
NCC4292/2021 Respondents
Fourth Respondent:
MS D DEGAN
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