Derry and Lopez (Addendum)

[2011] FamCA 452

FAMILY COURT OF AUSTRALIA

DERRY & LOPEZ (ADDENDUM) [2011] FamCA 452

FAMILY LAW – PROPERTY SETTLEMENT – dissolution of partnership – further matters agreed between parties

APPLICANT: Mr Derry

RESPONDENT: Ms Lopez

FILE NUMBER: ADC 5638 of 2007

DATE DELIVERED: In Chambers
17 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

ADDENDUM JUDGMENT OF: Strickland J

HEARING DATES:

9 June 2011

16 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Richards

SOLICITORS FOR THE APPLICANT: Scales & Partners

COUNSEL FOR THE RESPONDENT: Mr A Jordan

SOLICITORS FOR THE RESPONDENT: City East Legal

Upon Noting:

1. That the financial accounts for the partnership carried on by the parties and styled Mr & Ms Derry Partners (hereinafter referred to as “the partnership”) for the 2010 financial year have been prepared;

2. That neither party has taken personal drawings from the partnership that have not been accounted for in the reasons for judgment delivered on 13 May 2011 save and except that:

   a.the wife acknowledges having received a farm lease payment of $10,083.33 in the month of January 2011 for which she should account in the dissolution of the partnership; and

   b.the wife asserts that the husband has received the same or similar amount of farm income by two payments on 9 July 2010 and 10 August 2010 for which he should account in the dissolution of the partnership in the event that that assertion is proven;

3. That farm lease income for the period to 30 June 2011 is due to be paid to the partnership on 1 July 2011;

4. That Australian Taxation Office have acknowledged that the partnership is due a refund in part of some BAS payments.

Orders

1. Within six [6] weeks of the date hereof the husband pay to the Trust Account of the solicitors for the wife on behalf of the wife the sum of $764,466.

2. Contemporaneously with the said payment:

   (a)The wife resign from all offices that she may hold in Derry Nominees Pty Ltd and transfer to the husband her shares in that company.

   (b)The wife transfer or assign to the husband any loan account that she has in Derry Nominees Pty Ltd and/or the Derry Family Trust.

   (c)The wife relinquish any further interest or entitlement she may have in the said company or the said Trust.

   (d)The husband indemnify the wife and keep her indemnified against all debts and liabilities of the said Company and the said Trust (including any debit loan account of the wife therein).

3. The husband be solely responsible for either paying and discharging or ensuring that the said Family Trust pays and discharges all repayments as and when they fall due pursuant to the Bank SA FDA secured over the titles to the farming properties at Farm 1, Farm 2 and Farm 3, and the husband indemnify the wife and keep her indemnified against any liability pursuant to the said Bank SA FDA.

4. Contemporaneously with the said payment:

   (a)The wife transfer to the husband all that her estate and interest in the properties situated at:

   (i)K Street Town 1 in the State of Queensland;

   (ii)L Street Town 1 in the State of Queensland;

   (iii)B Street Town 2 in the State of Queensland.

   (b)The husband transfer to the wife all that his estate and interest in the properties situated at:

   (i)E Street Brisbane Suburb 1 in the State of Queensland;

   (ii)V Street Brisbane Suburb 2 in the State of Queensland.

   (c)The husband and the wife do all things necessary to equally discharge the Bank SA Portfolio Loan Account secured over the titles to the said properties in the State of Queensland.

5. The partnership Mr & Ms Derry Partners be dissolved effective as at 30 June 2011 upon the following bases:

   (a)each of the parties are restrained from drawing further funds from the partnership prior to its dissolution;

   (b)the parties do all things as shall be necessary to cause Accounting Firm 1 to prepare financial statements and income tax returns for the partnership for the financial year ending 30 June 2011, with such accounting fees to be a partnership expense;

   (c)the parties do all things as shall be necessary to pay to the Bank SA Business Maximiser Account held in the joint names of the parties all outstanding income and other amounts due to the partnership up until and including 30 June 2011;

   (d)the parties do pay from the said Bank SA Business Maximiser Account the outstanding partnership tax invoices and other amounts hereinafter set out:

   (i)the monthly interest due to Bank SA in respect of the Bank SA FDA adjusted to 30 June 2011;

   (ii)      Book-keeping Company 1 ($473.00);

   (iii)     AGL Electricity ($50.51)

   (iv)outstanding fees due to Accounting Firm 1 and any professional fees for work done in dissolving the partnership;

   (v)all outstanding rates, taxes, body corporate fees and insurances for any real property owned by the partnership and Derry Family Trust adjusted to 30 June 2011;

   (e)the gross rental income from the Queensland properties be paid in reduction of the Bank SA Portfolio Loan until 30 June 2011;

   (f)the parties do account for the partnership profits for tax purposes in equal proportions.

6. The wife forthwith transfer or assign to the husband all her estate and interest in the following items of property:

   (a)The joint Elders Risk Management Account.

   (b)The farm machinery.

   (c)The Nissan Utility.

7. The husband forthwith transfer or assign to the wife all his estate and interest in the following items of property:

   (a)The Ms Lopez Farm Account.

   (b)The Holden Commodore.

8. The credit balance of the said Bank SA Business Maximiser Account held in the joint names of the parties be divided equally between them upon dissolution of the said partnership.

9. The husband do forthwith transfer or assign to the wife any AMP Insurance Policy that he owns on the life of the wife.

10. The husband have as his sole property absolutely free of any claim, right, interest, demand or entitlement of the wife the following:

    (a)The properties at … K Street Town 1, … L Street Town 1 and … B Street Town 2.

    (b)The Elders Risk Management Account.

    (c)All monies, shares, and precious metals received by the husband pursuant to the order made on 4 December 2008 and any agreement made between the parties.

    (d)The farm machinery.

    (e)The Nissan Utility.

    (f)All shares purchased by the husband since the separation of the parties.

    (g)All drawings made by the husband from the accounts of the said partnership.

    (h)The husband’s superannuation entitlements in the Mr Derry Superannuation Fund.

    (i)All items of household furniture and effect currently in the possession or control of the husband.

    (j)All other items of personalty currently in the possession or control of the husband.

11. The wife have as her sole property absolutely free of any claim, right, interest, demand or entitlement of the husband the following:

    (a)The properties at … E Street Brisbane Suburb 1 and … V Street Brisbane Suburb 2.

    (b)The Holden Commodore motor vehicle.

    (c)The Ms Lopez Business Account.

    (d)The Ms Lopez Farm Account.

    (e)All monies, shares, and precious metals received by her pursuant to the order made on 4 December 2008 and any agreement made between the parties.

    (f)The wife’s superannuation entitlements.

    (g)All items of household furniture and effects currently in the possession or control of the wife.

    (h)All other items of personalty currently in the possession or control of the wife.

12. Each party shall do all such acts and sign all such documents as shall be necessary to give full force and effect to this order.

13. If either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms of this order within seven [7] days after the same shall have been tendered to him or her for that purpose then and in such case a Registrar or Deputy Registrar of the Family Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.

14. In the event of default by the husband in payment of the sum referred to in paragraph one [1] hereof or any part thereof:

    (a)The husband shall pay to the wife in addition to such sum interest upon the amount unpaid calculated at the rate prescribed by the Family Law Rules from the date of default to the date of payment of such sum; and

    (b)Should such default continue for a period of twenty-eight [28] days then and in that event the said farming properties at Farm 1 and Farm 2 be sold on such terms and conditions and for such price as the parties may agree and in default of agreement as determined by this Honourable Court, and from the net proceeds of sale the wife receive such sum as shall then be outstanding pursuant to these orders (including the interest due pursuant to sub-paragraph (a) hereof) and the husband receive the balance.

15. All applications and responses including the wife’s application for spousal maintenance be dismissed and removed from the active pending cases.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5638 of 2007

Mr Derry

Applicant

And

Ms Lopez

Respondent

ADDENDUM REASONS FOR JUDGMENT

1. I delivered my reasons for judgment in this matter on 13 May 2011.

2. In those reasons for judgment I set out the orders that I proposed to make, but as explained in paragraph 18 I gave the parties liberty to speak to the orders before putting them in place, and accordingly the only order that I made on 13 May 2011 was to adjourn the matter to 9 June 2011 to enable the parties to speak to the proposed orders.

3. Unfortunately, on 9 June 2011 there was a need for a further adjournment to enable further instructions to be taken, and accordingly I adjourned the matter to 16 June 2011.

4. At that time I was presented with an agreed Minute of Order specifically addressing issues relating to the dissolution of the partnership

   
   

   Mr & Ms Derry Partners.  I then identified with counsel the amendments that should be made to my proposed orders to cater for this agreed Minute of Order.

5. I have now incorporated those further matters which are agreed between the parties in the final order which I make today.

I certify that the preceding five (5) paragraphs are a true copy of the addendum reasons for judgment of the Honourable Justice Strickland delivered in chambers on 17 June 2011.

Associate: 

Date:  17 June 2011