Elamin and Chatah

[2012] FamCA 293

FAMILY COURT OF AUSTRALIA

ELAMIN & CHATAH [2012] FamCA 293

FAMILY LAW - INJUNCTIONS – Preservation of property – where approximately $2.25 million of the funds derived from the sale of businesses remains unaccounted for by the husband – orders restraining the husband from dealing with properties including businesses other than in the ordinary course of business

APPLICANT: Mr Elamin

RESPONDENT: Ms Chatah

FILE NUMBER: SYC 1090 of 2010

DATE DELIVERED: 30 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

IT IS ORDERED BY CONSENT

1. That within twenty one (21) days of the date of these Orders, Mr B of K Valuers is to be jointly instructed to prepare valuations as follows:

   (a)       An updating valuation of the property situated at and known as … P Street, Suburb L being the whole of the land comprised in folio identifier … .

   (b)       An updating valuation of the property situated at and known as … G Street, Suburb C being the whole of the land comprised in folio identifier … .

2. That for the purposes of Order 1 above, the parties are to confer by no later than fourteen (14) days from the date of these Orders to finalise the joint letter of instructions to the single expert which is set out in schedule “A” to these Orders, with the solicitors for the Husband to forward to the solicitors for the Wife any amendments sought to the joint letter of instruction set out in schedule “A” within seven (7) days of these Orders and the Wife’s solicitors to respond within a further seven (7) days. 

IT IS ORDERED

1. That the matter be stood over to 4 May 2012 at 10 am to deal with the issue of valuation of commercial entities dealt with in paragraphs 3 – 5 inclusive of the wife’s minute of orders.

IT IS FURTHER ORDERED BY CONSENT

1. That pursuant to Rule 15.54 of the Family Law Rules and within twenty one (21) days from the making of these Orders, the parties jointly instruct Dr D of … to prepare a report in relation to the Respondent Wife’s medical condition and the impact, if any, on her continued studies and earning capacity.

IT IS FURTHER ORDERED

1. That both parties shall be restrained from doing any act or thing or executing any document which has the effect of selling, disposing, assigning, transferring, further encumbering (including by way of mortgage, charge or other encumbrance whatsoever) any real property or business interest (including but not limited to the Husband’s healthcare business interests) in either party’s sole name, the parties’ joint names, or held by the parties with any other person without the prior written consent of the other party, or Court Order first obtained or in the ordinary course of business and in any event not to be in excess of $10,000.00

2. That the Husband is restrained from disposing of any funds currently held by the Husband or in a bank account operated by the Husband being funds related to the proceeds of sale of any of the Husband’s healthcare business interests from 1 January 2009 to date, without the consent of the Wife or Order of the Court first obtained or in the ordinary course of business and in any event not to be in excess of $10,000.00.

3. That without limiting the operation of Order 5, the restraint provided for at Order 5 above shall include but not be limited to the following:

   (a)       … P Street, Suburb L being the whole of the land comprised in folio identifier … ;

   (b)       … G Street, Suburb C being the whole of the land comprised in folio identifier … ;

   (c)       … A Street, Suburb N being the whole of the land comprised in folio identifier … ;

   (d)       Lot 1 and Lot 2, … W Street, Suburb E being the whole of the land comprised in folio identifiers … and …;

   (e)       Lot 3, … W Street, Suburb E being the whole of the land comprised in folio identifier … ;

   (f)        … F Street, Suburb E being the whole of the land comprised in folio identifier … ;

   (g)       Business 1;

   (h)       Business 2; and

   (i)         Business 3.

4. That the Husband shall within 48 hours of these Orders provide to the Wife’s solicitors, in writing, a Statement setting out all transactions in relation to any healthcare business or other business interest sold or otherwise disposed of by the Husband including but not limited to Business 1, Business 4 and Business 5 (whether a partial interest or otherwise) from 1 January 2009 to date including the following:

   (a)       The dates of each sale/transfer (including partial transfer);

   (b)       Sale price shown on the contract for sale for each sale/transfer (including partial transfer), including provision of each contract for sale from 1 January 2009 to date;

   (c)       Details of the total amounts received by the Husband either solely or in his capacity as an officeholder in relation to each sale/transfer, including provision of all relevant source documents including but not limited to settlement sheets (showing total amounts received, including any adjustments) and bank statements showing all amounts received by the Husband from 1 January 2009 to date;

   (d)       Full particulars of how the funds were applied including provision of all relevant source documents including but not limited to bank statements showing each transfer of money relating to the proceeds of sale and full particulars of amounts currently held by the Husband being proceeds of sale from the Husband’s healthcare business or other business interests; and

   (e)       Particulars of funds remaining in the Husband’s possession and/or control which relate to the sale of any of the Husband’s healthcare business interests from 1 January 2009 to date, together with source documents evidencing the amounts held and account details showing where the funds are held.

   That the time for compliance with Order 8 be 14 days from the date of this Order.

5. That the Husband shall  within 48 hours of the date of these Orders provide to the Wife’s solicitors, in writing, a Statement setting out full details of each time the Husband either solely or in his capacity as an officeholder has refinanced an existing loan in his name (whether in his sole name or jointly with any other person) or in the name of an entity in which the Husband has an interest, including the date of each refinance, details of the financial institution/lender for each refinance, purpose of each refinance, total amounts received by way of refinance, and the security used for each refinance and how funds were applied by the Husband.

6. That the Husband reply to the Wife’s request for disclosure by service of a list of documents dated 15 February 2012 pursuant to Rule 13.20 of the Family Law Rules within seven (7) days of the date of these Orders.

7. That the Husband shall within seven (7) days from the date of these Orders file and serve an Undertaking as to disclosure in accordance with Rule 13.15.

8. That the parties are granted leave on seven (7) days’ notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elamin & Chatah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1090 of 2010

Mr Elamin

Applicant

And

Ms Chatah

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court in the context of proceedings for property settlement in which there is a major allegation of substantial and significant non-disclosure on the part of the husband.  On the last occasion when the matter was before me I made orders which would, if complied with, have remedied the allegations of non-disclosure.

2. Before me today is an affidavit of the husband which was sworn in accordance with the orders which were made on the last occasion.  Counsel for the wife points to moneys from the sale of businesses for which the husband has not accounted, which on the face of the affidavit amount to approximately $2.25 million.  The solicitor for the husband concedes that on the face of the husband’s affidavit he has not explained the manner in which those funds have been disbursed.

3. In those circumstances the wife today comes before the Court seeking orders for further disclosure which will be made by consent. The wife also seeks orders that properties and businesses owned by the husband either solely or jointly with other people be encumbered by way of injunction to prevent the disposal of any asset. The husband does not consent to those orders.

4. It is alleged on the part of the wife, and not contradicted by the husband, that there is insufficient equity, on the face of the material which has been filed, residing in the properties, to account for the amount of $2.25 million which is otherwise unaccounted for.  In those circumstances it is my view that it is appropriate to make orders which restrain the husband from dealing with properties including businesses other than in the ordinary course of business, and I propose to make those orders.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 March 2012.

Associate: 

Date:  30 April 2012