Donovan and Royce and Anor

[2012] FamCA 226

FAMILY COURT OF AUSTRALIA

DONOVAN & ROYCE AND ANOR [2012] FamCA 226

FAMILY LAW - PROPERTY - Minute of Consent Orders - Where proposed consent Orders are just and equitable

APPLICANT: Mr Donovan

1st RESPONDENT: Ms Royce

2nd RESPONDENT:  R Pty Ltd

FILE NUMBER: BRC 10773 of 2010

DATE DELIVERED: 2 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 2 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Hardings Gulhane Solicitors

COUNSEL FOR THE 1ST RESPONDENT: Mr Kirk SC

SOLICITOR FOR THE 1ST RESPONDENT: Hopgood Ganim Lawyers

Orders

1. R Pty Ltd ACN … be joined as the Second Respondent to these proceedings.

Retention of personal property

1. From the date these Orders are made by the Family Court, the Applicant shall immediately retain and/or receive as his absolute property, all his right, title and interest to and in, and the First Respondent shall immediately relinquish and/or transfer to the Applicant all her right, title and interest, if any, to and in the following:

   (a)The Applicant’s personal possessions and effects, subject to Order 5(b) herein;

   (b)The Suzuki 4WD motor vehicle, registration number …, currently registered in the First Respondent’s name and the First Respondent shall sign all necessary documents to effect the transfer of the registration of the vehicle to the Applicant;

   (c)The Applicant’s Segway mobility device;

   (d)The credit balances of the Applicant’s bank accounts and debit balances of the Applicant’s credit card accounts, in his sole name, both in Australia and overseas, namely:

   (1)National Australia Bank Classic Banking IPMS/ Flex-I Account (number ..);

   (2)National Australia Bank Classic Banking Account (number …);

   (3)ANZ One/Access Advantage Cheque Account (number …)

   (4)ANZ Business Classic Account (number …);

   (5)ANZ VUV Access Account (…);

   (6)ANZ E*trade Cash Investment Account (…);

   (7)Commonwealth Bank Complete Access Account (number …);

   (8)OCBC Savings Accounts (number …01 and …02);

   (9)Snoras Bank Account;

   (10)ANZ Rewards Visa credit card (number …);

   (11)ANZ Rewards credit card (number …);

   (12)ANZ Platinum credit card (number …); and

   (13)Commonwealth Bank Gold MasterCard (number …);

   (e)The Applicant’s interest in policies of insurance including term-life, income protection and business expenses, namely:

   (1)Asteron Income Protection Insurance policy, with policy number …97;

   (2)Asteron Income Protection Insurance policy, with policy number …98;

   (3)Asteron Term Life Insurance policy, with policy number …07; and

   (4)Asteron Business Expenses policy, with policy number …99;

   (f)The Applicant’s entitlement in any superannuation fund;

   (g)The Applicant’s interest in any Australian and overseas shares namely:

   (1)Company 1 (including the balance of any sale proceeds if disposed of);

   (2)Company 2;

   (3)Company 3;

   (4)Company 4;

   (5)Company 5;

   (6)Shareholdings in the Company 6 portfolio;

   (h)The Applicant’s interests in the following companies and/or entities pursuant to Order 6(a) herein:

   (1)V Pty Ltd ACN …;

   (2)P Pty Ltd ACN … (in liquidation);

   (3)V Pte Ltd (incorporated in the Republic of Singapore);

   (4)P Pte Ltd (incorporated in the Republic of Singapore)

   (the entities referred to in Order 1(h)(1)-(4) shall be referred to as the V group of entities); and

   (5)V Group Pty Ltd ACN …;

   (6)D Pty Ltd ACN …;

   (7)I Pty Ltd ACN …;

   (8)S LLC;

   (9)Y Company BN …;

   (the entities referred to in Order 1(h)(5)-(9) shall be referred to as any other entity in which the Applicant has an interest).

2. From the date these Orders are made by the Family Court, the First Respondent shall immediately retain and/or receive as her absolute property, all her right, title and interest to and in, and the Applicant shall immediately relinquish and/or transfer to the First Respondent all his right, title and interest, if any, to and in the following:

   (a)The property located at … Z Street, Suburb BB, in the State of Queensland registered in the First Respondent’s sole name (the Z Street property);

   (b)The property located at … (being sublease number …), Town A, in the State of Queensland registered in the First Respondent’s sole name (the Town A property);

   (c)The First Respondent’s one-third interest in the H Business, …, Town N, in the State of Queensland (the H Business);

   (d)The furniture, chattels and household effects in the First Respondent’s possession, located at the Z Street Property;

   (e)The furniture, chattels and household effects, located in the Town A property, subject to Order 5(b);

   (f)The First Respondent’s personal possessions, effects and jewellery;

   (g)The credit balances of the First Respondent’s bank accounts and debit balances of the First Respondent’s credit card accounts, in her sole name, including the following:

   (1)Westpac One Account (number …);

   (2)Queensland Professional Credit Union Savings Account (numbers …AA, …BB and …CC);

   (3)Westpac Earth credit card (number …);

   (4)Bankwest Lite Gold Mastercard (number …)

   (h)The First Respondent’s superannuation entitlement with QSuper (member number …) with a balance of approximately $63,575.45 as at 16 March 2012;

   (i)The First Respondent’s interest in the Second Respondent of which she is the sole director, secretary and shareholder;

   (j)The First Respondent’s current or future interest in any litigation, claim, action or demand either in her sole name or in the name of the Second Respondent including but not limited to the current proceedings against Mr NN in relation to the purchase of properties at … MM Street, Suburb BB and Units 1-9 in Suburb FF; and

   (k)Such proceeds as the First Respondent may receive from any current or future litigation against Mr NN.

The Cash Payment

1. The Second Respondent, R Pty Ltd, in order to discharge an obligation to pay to the Applicant, shall pay or cause to be paid to the Applicant the sum of $1,000,000, to be paid to the trust account of Hardings Gulhane Solicitors as follows:

   (a)The cash sum of $850,000, within 90 days from the date these Orders are made by the Family Court, provided the Applicant has satisfied Orders 4 and 5 herein; and

   (b)The cash sum of $150,000, within 12 months from the date these Orders are made by the Family Court.

Caveats, Security and Indemnity

1. Within 14 days from the date these Orders are made by the Family Court, the Applicant at his sole cost and expense, shall do all acts and things necessary and sign all necessary documents to:

   (a)Remove the following caveats from the titles of the following properties:

   (1)Caveat number … registered against the title for the Z Street Property;

   (2)Caveat number … registered against the title for the H Business;

   (3)Caveat number … registered against the title for:

   (A)Units 1-9 in Suburb FF, registered in the name of the Second Respondent; and

   (B)Units 1-6 in Suburb AA, registered in the name of the Second Respondent; and

   (b)Shall immediately following the removal of the caveats from the titles as detailed in Order 4 (a) above produce to the First Respondent’s solicitors all documentation, including but not limited to current title searches for each of the properties evidencing the removal of the caveats detailed in  Order 4(a) above.

4A(1)Notwithstanding the provision of Order 4(a)(3) herein, caveat number … registered against the title for:

(a)Units 1-9 in Suburb FF, registered in the name of the Second Respondent; and

(b)Units 1-6 in Suburb AA, registered in the name of the Second Respondent,

shall be removed by the Applicant when the sum of $850,000 is paid to him pursuant to these Orders, save that in the event that the First Respondent elects to sell or encumber either or both of the said properties for the purpose of raising the funds necessary to pay the said sum, the Applicant shall, upon receipt of written notice in that regard, remove the caveat or caveats as the case may be.

1. The First and Second Respondents shall indemnify the Applicant against all and any liability to taxation, penalties and interest that may accrue to him by reason of the operation of s109C of the Income Tax Assessment Act 1936 (Cth) and the payment to him of the sum provided in Order 3 herein by the Second Respondent.

2. To the extent, if any, that the Second Respondent fails to pay to the Applicant the sum or sums provided for in Order 3 herein, the First Respondent shall be liable to discharge the obligation of the Second Respondent until payment or release.

The Town A Property

1. Within 21 days from the date these Orders are made by the Family Court, the Applicant at his sole cost and expense shall:

   (a)Vacate the Town A property, including removing all of his personal belongings, items and effects and deliver up to the First Respondent’s solicitor, all keys in his possession or control for all locks and security systems for the Town A property;

   (b)Ensure all fixtures and furniture remains in the Town A property in good and useable condition including but not limited to the following items:

   (1)Dining room table and six (6) chairs;

   (2)Lounge suit and two (2) lounge chairs;

   (3)Lounge table;

   (4)Television and television stand;

   (5)Kingsize bed;

   (6)Four (4) single beds, including two (2) single bunk beds;

   (7)Three (3) bedside tables;

   (8)Mirrored two (2) draw cabinet;

   (9)Dishwasher;

   (10)Washing machine

   (11)Clothes dryer;

   (12)Plastic table and six (6) chairs on deck;

   (13)Plastic table and two (2) chairs on bedroom balcony;

   (14)Cutlery, crockery and pans;

   (15)All appliances in useable condition and working order;

   (16)All pillows, mattresses, bedcovers and lounge suite covers in clean and useable condition;

   (c)Undertake all necessary cleaning, repairs and maintenance including but not limited to carpet cleaning and washing down all windows, walls and surfaces, to ensure the Town A property is in a clean, tidy and saleable condition (that is, a habitable condition) to the satisfaction of the First Respondent, and if the First Respondent is not so satisfied as to the Town A property being in a clean, tidy and saleable condition (that is, a habitable condition), the parties shall engage an independent agent as agreed in writing by them to determine whether the condition of the Town A property satisfies this Order, at the sole cost of the Applicant. In the event the parties do not agree as to the independent agent to be appointed within 7 days, then the First Respondent’s solicitors are to nominate the independent agent.

Corporate Entities

1. Within 90 days from these Orders being made by the Family Court and contemporaneously with Order 3(a) herein;

   (a)The Applicant at his sole expense shall produce to the First Respondent for signing all necessary documents to give effect to the following:

   (1)Transfer to the Applicant her interest in shareholding in V Pty Ltd comprising of 1 ordinary share;

   (2)Transfer and/or assign to the Applicant all of her right, responsibility, title and interest in any debit and/or credit loan accounts in any of the V group of entities in which she was involved in during the marriage and the Applicant shall indemnify the First Respondent and keep her indemnified in relation to any revenue liability or other liability associated with the transfer and/or assignment including but not limited to duty and/or income tax liability;

   (3)Release the First Respondent and produce to the First Respondent a Deed of Release in relation to any guarantee, loan and/or indemnity given by her in relation to the V group of entities.

   (b)The First Respondent at her sole expense shall produce to the Applicant for signing all necessary documents to transfer and/or assign to the First Respondent all of his right, responsibility, title and interest in any debit and/or credit loan accounts in the Second Respondent and the First Respondent shall indemnify the Applicant and keep him indemnified in relation to any revenue liability or other liability associated with the transfer and/or assignment including but not limited to duty and/or income tax liability.

2. The Applicant indemnify the First Respondent and keep her indemnified in relation to all actions, claims or demands made by the Australian Taxation Office or other revenue authority including the Queensland Office of State Revenue, in relation to any tax liability or taxation obligations (including but not limited to income tax, capital gains tax, PAYG withholding obligations, GST or fringe benefits tax) that the Respondent may incur or have incurred by way of assessments, reassessments, penalties or interest on tax or otherwise howsoever arising as a result of her involvement or association as a director and/or shareholder or otherwise in any business activity or company within the V group of entities or any other entity in which the Applicant has an interest during the marriage or post-separation.

3. The Applicant indemnify the First Respondent and keep her indemnified in relation to:

   (a)Any Lease, Guarantee, Mortgage, Borrowing, Debt or Demand in relation to any of the V group of entities and any other entity in which the Applicant has an interest;

   (b)All liabilities, actions, claims, suits, loans and demands of any nature whatsoever in relation to any debt owing by any of the V group of entities and any other entity in which the Applicant has an interest in, past, present or future including but not limited to any liability, loan or indemnity that might be occasioned by reason of the First Respondent holding any office in the said entities or as a guarantor in respect of any guarantee given on the Applicant’s behalf or on behalf of any of the said entities;

   (c)All liabilities arising from the liquidation of P Pty Ltd (in liquidation).

Joint Bank Accounts

1. Immediately upon these Orders being made by the Family Court, the parties shall do all acts necessary and sign all necessary documents to close all joint bank accounts after allowing for any unpresented cheques with any credit funds held in any joint account to be equally distributed to each party and the husband is to be solely liable for any debit balance.

Children’s Bank Accounts

1. In relation to the Bank of Queensland account held in the name of the parties’ child, J born … September 1994, account number … and the Bank of Queensland account held in the name of the parties’ child, G born … July 1996, account number …, (the Children’s Bank Accounts), these bank accounts are to remain in the possession of and under the control of the First Respondent.

Liabilities

1. The First Respondent be solely responsible for and meet payment of all liabilities in the First Respondent’s name and/or in the name of the Second Respondent but excluding any liabilities specifically dealt with in this Order and the First Respondent shall indemnify the Applicant and keep him indemnified from any liability howsoever arising.

2. The Applicant be solely responsible for and meet payment of all liabilities in the Applicant’s name and/or in the name of V group of entities and/or in the name of any other entity in which the Applicant has an interest but excluding any liabilities specifically dealt with in this Order and the Applicant shall indemnify the First Respondent and keep her indemnified from any liability howsoever arising, including credit card debts, income tax assessed or not yet assessed (as well as penalties and interest) and any other claims, actions, suits or demands.

General retention and release

1. The Applicant and the First Respondent each retain as his or her (as the case may be) own property absolutely, or assets (other than those dealt with herein) and financial resources of whatsoever description and wheresoever situate both real and personal of which that party is the legal owner of and/or in the possession of and/or under the control of that party at the date of this Order.

Miscellaneous

1. Each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of this Order and in the event that either party refuses or neglects to comply with any provisions of this Order within seven (7) days of a written request to do so, then a Deputy Registrar of this Court at Brisbane is appointed to execute all documents in the name of that party necessary to give validity and operation to this Order.

2. Save as otherwise provided herein the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these Orders prepare the documentation necessary to give effect to the provisions of these Orders at their cost and further, be responsible for the payment of registration fees and all other fees in relation to the transfer of the asset to their name.

3. Save as otherwise provided herein each party shall pay their own legal costs of and incidental to these proceedings, preparation of these Orders and putting settlement into effect and otherwise there be no order as to costs.

4. Any duty payable on transactions arising from these Orders or any documents executed pursuant to these Orders be paid by the transferee’s spouse or the spouse receiving the benefit of such transfer or transaction.

5. Each party have liberty to apply to this Honourable Court on the giving on seven (7) days notice in writing to the other for the interpretation and/or enforcement of the terms and conditions hereof and for Consequential Orders.

6. All applications be dismissed.

NOTATION

A.That the Applicant and the First Respondent have contemporaneously entered into a binding financial agreement pursuant to section 90D of the Family Law Act 1975 (Cth) in relation to the issue of spousal maintenance and a copy of the Agreement is marked to the letter ‘A’ attached to these Orders.

B.That the Applicant and the First Respondent represent and agree with each other that each has not in any way pledged or committed the credit of the other or of either of them or undertaken any obligation of or on behalf of or in the name of either of them either solely or with the other.  Each further agrees with the other that should any contingent or actual liability attach to either party hereto as a result of any act of omission by the other party and not disclose in this Order or in documentation filed or to be filed with the Court the party whose act or omission occasioned such a contingent or actual liability will indemnify and hold indemnified by the execution of this Order the party against any such contingent or actual liability and all sums, actions, proceedings, accounts, claims, demand, costs and expenses of any kind whatsoever relating to such contingent or actual liability.

C.It is intended by the parties that this Order shall end once and for all the financial relationship between the parties in relation to property settlement and spousal maintenance in so far as it is legally possible pursuant to section 81 of the Family Law Act.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donovan & Royce and Anor 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 BRISBANE

FILE NUMBER: BRC 10773 of 2010

Mr Donovan

Applicant

And

Ms Royce and  R Pty Ltd

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Having read the consent Orders, I am satisfied that the Orders signed by the parties and handed to me represent a just and equitable outcome in the case given the various contingencies that have been briefly referred to this morning.

2. I therefore make Orders as set out at the commencement of these reasons in accordance with the draft consent Orders provided to me.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 2 April 2012.

Associate: 

Date: 10 April 2012