Galip & Galip

Case [2023] FedCFamC1F 920

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Galip & Galip [2023] FedCFamC1F 920

File number: SYC 1278 of 2023
Judgment of: CAMPTON J
Date of judgment: 27 October 2023
Catchwords: FAMILY LAW – INTERIM APPLICATION – Interim application for the sale of real property, property settlement, injunctive orders and disclosure – Where the husband failed to appear at the hearing – Where the husband has failed to comply with his disclosure obligations and with court orders – Orders made broadly as sought by the wife on an undefended basis.
Legislation:

Family Law Act 1975 (Cth) ss 79 and 80

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, rr 6.02, 12.06
Cases cited:

Joseph & Joseph [2015] FamCAFC 168; (2015) FLC 93-665

Kioa v West (1985) 159 CLR at 582

Oriolo and Oriolo (1985) FLC 91-653l

Stanford & Stanford (2012) 247 CLR 108

Strahan & Strahan (2011) FLC 93-466

Tsiang & Wu and Ors (2019) FLC 93-911

Weir and Weir (1993) FLC 92-338
Division: Division 1 First Instance
Number of paragraphs: 67
Date of hearing: 24 October 2023
Counsel for the Applicant: Mr Young
Solicitor for the Applicant: Abbas Jacobs Lawyers
Solicitor for the Respondent: Did not participate

ORDERS

SYC 1278 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GALIP

Applicant
AND:

MR GALIP

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

27 OCTOBER 2023

THE COURT ORDERS THAT PENDING FURTHER ORDER:

1.The wife be forthwith by way of these Orders appointed as trustee for the husband for sale of the real property at B Street, Suburb C (“the Suburb C property”) upon the terms as are appropriate and upon completion of such sale the wife shall apply the proceeds of the sale in the following priority:

(a)In payment of an amount sufficient to discharge mortgage … secured on the property in favour of the Commonwealth Bank of Australia;

(b)In payment of the costs incurred on sale, including real estate agents commission and conveyancing fees, legal costs and disbursements incurred in relation to the sale;

(c)In payment of other costs incurred by the wife, including legal and valuation fees, if any and/or as are necessary, in acting in her capacity as trustee; and

(d)In payment of the balance to the wife by of partial property settlement

2.The wife have, as against the husband, the exclusive use and occupation of the Suburb C property and the husband shall not approach or be upon the said property and shall not do any act or thing to interfere with, or attempt to frustrate or inhibit the wife in her role as trustee for sale of the property, including but not limited to engaging or communicating with the listing real estate agent or potential purchasers of the property.

3.On or before 31 January 2024 the husband is to pay to the wife by way of partial property settlement the sum of $800,000.

4.On or before 8 November 2023:

(a)The husband…

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AGLC
Galip & Galip [2023] FedCFamC1F 920
Case
[2023] FedCFamC1F 920
Decision Date

CaseChat Overview and Summary

In the matter of Galip & Galip, the Federal Circuit and Family Court of Australia (Division 1) dealt with an application by Ms Galip seeking various interim orders related to the sale of jointly held real property, property settlement, injunctive orders, and disclosure. The husband did not appear at the hearing and had failed to comply with his disclosure obligations and prior court orders. The court was required to determine whether the relief sought by the wife should be granted in light of the husband’s non-compliance and absence.

The court found that the husband had not opposed the sale of the property and had not raised any issues with the wife’s application during the hearing. It was also noted that the husband had not complied with his disclosure obligations or previous court orders. The court reasoned that the wife's application was essentially undefended and that the husband's failure to appear or engage with the proceedings warranted the granting of the relief sought. The court ordered that Ms Galip be appointed as trustee for the sale of the property, with exclusive use and occupation, and that the husband refrain from interfering with the sale. Additionally, the court ordered the husband to make a payment of $800,000 by a specified date, to provide certain disclosure documents, and to respond to information requests regarding his businesses. Injunctions were also imposed to prevent the husband from registering property dealings, changing company officeholders, or making certain payments until he complied with other orders.

The court made detailed orders for the sale of the property, use and occupation, payment, disclosure, and injunctions, and set timelines for compliance and further proceedings. The court also warned the husband about the consequences of continued non-compliance, including the potential striking out of his response and allowing the wife to proceed on an undefended basis for final relief.

Orders

Orders of the court

SYC 1278 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GALIP

Applicant

AND:

MR GALIP

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

27 OCTOBER 2023

THE COURT ORDERS THAT PENDING FURTHER ORDER:

1. The wife be forthwith by way of these Orders appointed as trustee for the husband for sale of the real property at B Street, Suburb C (“the Suburb C property”) upon the terms as are appropriate and upon completion of such sale the wife shall apply the proceeds of the sale in the following priority:

(a) In payment of an amount sufficient to discharge mortgage … secured on the property in favour of the Commonwealth Bank of Australia;

(b) In payment of the costs incurred on sale, including real estate agents commission and conveyancing fees, legal costs and disbursements incurred in relation to the sale;

(c) In payment of other costs incurred by the wife, including legal and valuation fees, if any and/or as are necessary, in acting in her capacity as trustee; and

(d) In payment of the balance to the wife by of partial property settlement

2. The wife have, as against the husband, the exclusive use and occupation of the Suburb C property and the husband shall not approach or be upon the said property and shall not do any act or thing to interfere with, or attempt to frustrate or inhibit the wife in her role as trustee for sale of the property, including but not limited to engaging or communicating with the listing real estate agent or potential purchasers of the property.

3. On or before 31 January 2024 the husband is to pay to the wife by way of partial property settlement the sum of $800,000.

4. On or before 8 November 2023:

(a) The husband is to provide to the solicitors for the wife all relevant documents disclosing the settlement of and use and application of the funds received from the sales of 1 D Street, Suburb G in early 2023, E Street, Suburb H in mid-2023, 2 D Street, Suburb G in late 2023 and F Street, Suburb H in late 2023; and

(b) The husband shall file and serve an affidavit together with annexed verifying documents identifying the foundations for, and particulars of, including the source of funds, the acquisition from his solicitor Mr Ammar Steve Kassem (“Mr Kassem”), by J Pty Ltd, in late 2023 of the transfer of K Street, Suburb L to J Pty Ltd.

5. On or before 10 November 2023, the husband is to do all things to respond to and answer the requests for information in the letter from Mr M of N Accountants dated 12 July 2023, so far as they concern P Pty Ltd and/or Q Pty Ltd and shall simultaneously provide a copy of such documents and information to the wife.

6. Within 48 hours of these orders the wife file and serve an undertaking as to damages pursuant to r 10.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

7. Subject to the wife complying with Order 6, the husband, pending his compliance with Orders 3 and 4 hereof, is restrained by injunction from doing any act or thing, save as to facilitate compliance with Order 3 hereof or the wife’s prior written consent, so as to:

(a) Register any dealing in relation to any real property of which the husband, or a company of which the husband is a director, is the registered proprietor;

(b) Effect any change to the officeholders or members of any company of which the husband is a director; or

(c) Pay or cause to be paid from any entity or corporation in which he has an interest monies to Mr Kassem or FutureLegal Pty Ltd except to meet the costs incurred for legal services.

8. The wife serve a sealed a copy of these orders on the husband’s address for service in these proceedings and upon the husband personally within 72 hours of the date of these Orders.

9. The wife file and serve any affidavit evidence upon which she seeks to rely as to the costs of and incidental to this determination, together with written submissions of no more than three pages, on or before 10 November 2023. In the event the husband opposes the relief to costs as sought by the wife, he shall file and serve any affidavit upon which he seeks to rely and any written submissions of no more than three pages on or before 24 November 2023. Determination of the wife’s application for costs, subsequent to 24 November 2023, will be reserved to chambers.

10. Save and except as provided for by these Orders, all outstanding applications for interlocutory or interim orders and all outstanding applications in a proceeding or responses to an application in a proceeding are dismissed.

11. The proceedings are listed for case management in person at 9.30am on 6 February 2024.

12. The husband by way of these Orders is again placed on notice as to the obligations as to disclosure as codified by ch 6 of the Rules and his failure to comply with prior orders made as to the filing of an undertaking as to disclosure.

13. In the event an undertaking as to disclosure of the husband is not filed and served on or before 22 January 2024, consideration will be given on the adjourned date to striking out his Response to Initiating Application filed 22 May 2023 and for the wife to proceed to seek final relief as against the husband on an undefended basis.

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.

Background

Background to the litigation

The gravamen of her relief for orders as to the Suburb C property (currently vacant save for a granny flat which is tenanted) jointly held by the parties was for she to be able to affect a sale of the property absent interference or hinderance by the husband and for her to receive the proceeds of sale. This relief, at least as to the fact of the sale of the property, was, on the wife’s case:(a)Not opposed by the husband as at 16 December 2022 when an email was sent from his solicitors to the wife’s solicitors, stating: “We do not have final instructions, we do not see any issue with the sale of the [B Street] property early next year”; and (b)Canvassed during the course of the hearing before the Senior Judicial Registrar on 23 May 2023.BACKGROUND AND FINDINGS The wife was born in 1977 in Australia and is currently 46 years old. The husband was born in 1976 in Country S and is currently 47 years old. The parties met in 2009 and married commencing cohabitation in 1999. At the time of marriage, the husband was on a student visa and was not yet an Australian citizen. The wife and her mother sponsored the husband’s application to migrate to Australia from Country S by way of a spouse visa. The wife paid the solicitor and Department of Immigration fees for the application. The parties have three daughters and one son: ·Ms W, born 2002 and is now 21 years old;·Ms X, born 2005 and is now 18 years old; ·Y, born 2007 and is now 16 years old; and ·Z, born 2009 and is now 14 years old. At the time of marriage, the wife was working as a public servant. Shortly after getting married, the husband achieved casual employment. The husband contributed a smashed uninsured car. The wife contributed $50,000 in savings and a car. The wife applied her savings to purchase a car for the husband for approximately $4,000 – $5,000 and pay out his $10,000 credit card debt. In 2000 the parties purchased their first home at T Street, Suburb U (“the Suburb U property”), funded by way of a mortgage and modest savings. They rented the house out and lived in the granny flat at the rear until about 2001. In 2001, the husband obtained a trade licence. The parties decided to open their own business, incorporating P Pty Ltd. The wife supported the husband in opening the business and carried out all the paperwork, forms, invoices and sending of emails. The financial statements for P Pty Ltd for the year ended 30 June 2021 records a profit of $1,180,997. In 2001 the parties sold the Suburb U property for a profit and purchased a property at V Street, Suburb AA (“the Suburb AA property”). In 2006 they sold the Suburb AA property and purchased the property at the Suburb C property using the proceeds of sale of the Suburb AA property and obtaining a mortgage. The parties thereafter used their income from P Pty Ltd and equity in the B Street property to commence to buy other real properties and develop them. The wife left employment in the public service in 2009 due to institutional changes, and at the request of the husband.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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