Galip & Galip (No 4)
[2024] FedCFamC1F 788
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Galip & Galip (No 4) [2024] FedCFamC1F 788
File number: SYC 1278 of 2023 Judgment of: SCHONELL J Date of judgment: 18 November 2024 Catchwords: FAMILY LAW – PROCEDURAL – Where the second respondent seeks orders restraining the applicant, the first and second respondent from listing for sale a property – Where the third respondent seeks relief in relation to the property and is content for the proceeds of sale to be invested in real estate in the name of the applicant – Where the property has been valued by a court-appointed valuer – Where the applicant has received an offer from a third party for a sum in excess of the valuation of the property – Where the applicant has the benefit of orders appointing her as the trustee for the sale of the property – Where the Court is not satisfied that there is any basis for a restraint of the applicant. Legislation: Family Law Act 1975 (Cth) s 106B Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 18 November 2024 Place: Sydney Counsel for the Applicant: Mr Young Solicitor for the Applicant: Abbas Jacobs Lawyers Counsel for the First Respondent: Mr McCrudden Solicitor for the First Respondent: Atila Lawyers Solicitor for the Second Respondent: JB Solicitors Counsel for the Third Respondent: Mr Roberts Solicitor for the Third Respondent: Bartier Perry Lawyers ORDERS
SYC 1278 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GALIP
Applicant
AND: MR GALIP
First Respondent
MR DONNELLY
Second Respondent
XX PTY LTD
Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All outstanding interim applications are listed for an in-person interlocutory hearing before me at 10.00 am on Friday, 10 January 2024 not otherwise dealt with this day.
2.Orders are made in accordance with paragraphs 1 to 8 of a document titled “Applicant’s minute of orders proposed to progress the matter dated 18 November 2024” (as amended and marked as Exhibit 1) as set out hereunder:
(a)By 2 December 2024, the first respondent file and serve an affidavit deposing to:
(i)the date and content of any text message (including iMessage, WhatsApp and any other messaging application) sent or received, or phone call made, to Mr AF, Mr AG or Mr AH since 28 February 2023,
(ii)the email and postal addresses of Mr AF and Mr AG,
(iii)the content of all oral instructions and financial documents provided to Mr AJ or AK Pty Ltd in order for that firm to complete the work described in their invoice dated 31 May 2024,
(iv)all tax returns and business activity statements filed by companies controlled by the first respondent since 1 July 2019, and
(v)the source of the estimate that the monthly income of P Pty Ltd is “$69,629.54 + Gst” in his solicitor’s letter dated 15 August 2024.
(vi)All documents (eg bank statements) confirming receipt of the payments described at paragraph 31 ($115,000) and 32 ($1,100,000) of the applicants points of claim into a particular account and disclosing the manner in which they were applied, and
(vii)All bank statements 1 – 5 for CBA account …12 opened by Mr Galip in early 2021.
(b)By 25 November 2024, the applicant provide further notification to the following persons of her intention to join them to these proceedings and invite them to appear on 10 January 2024:
(i)Ms WW by email to …@...,
(ii)Mr AC by email to …@... and his solicitor …@...,
(iii)Ms YY by email to …@....
(c)Within 7 days of receiving from the first respondent an email address or mobile phone number for Mr AF or Mr AG, the applicant provide notification to those persons of her intention to join them to these proceedings and invite them to appear on 10 January 2024.
(d)By 8 January 2024, any of the proposed fourth to eighth respondents who seek to participate in the proceedings must file a Notice of Address for Service.
(e)The second respondent’s Application in a Proceeding dated 5 March 2024, and the third respondent’s Application in a Proceeding dated 5 November 2024, be listed for interim hearing for 1 day on 10 January 2024.
(f)By 16 December 2024, the parties (including any party who has filed a Notice of Address for Service) file any further evidence in relation to the second and third respondents’ applications.
(g)By 8 January 2024, the applicant and first to third respondents file a case outline in relation to the second and third respondents’ applications.
(h)By 21 November 2024, the first respondent pay the invoice of R Accountants issued to the first respondent dated 25 October 2023.
3.Orders are made in accordance with paragraphs 5 and 6 of a document titled “Minute of Order” (marked as Exhibit 2) as set out hereunder:
(a)Within 14 days of the date of these orders:
(i)The Husband is to provide to the solicitors for the Third Respondent 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
(ii)The Husband shall file and serve on the Third Respondent 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 AH, by J Pty Ltd, in late 2023 of the transfer of K Street, Suburb L to J Pty Ltd
(b)The Husband is to provide the documents and information in answer to 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 as referred to in Order 5 of Orders 27 October 2023 to the Third Respondent.
4.The wife is to provide to the Second and third Respondents a copy of any exchanged contract in relation to the Suburb C property together with notice of the date of exchange.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Galip & Galip has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
This is an application that has come on short notice whereby the second-named respondent to proceedings before the Court seeks a declaration that a private loan agreement dated 10 June 2021 is a valid and binding loan agreement and seeks orders restraining the applicant, the first and second respondent from listing for sale a property at Suburb C (“the Suburb C property”).
The third respondent to the proceedings also seeks relief in relation to the Suburb C property, save that the third respondent is content for the proceeds of sale to be invested in real estate in the name of the applicant.
The Suburb C property has been valued by a court-appointed valuer in June of last year at $3,000,000.
A third party has recently approached the wife indicating that they are prepared to purchase the property for $3.25 million and that in the event that a contract is exchanged with them, that contact would provide for a settlement of the sale within approximately six weeks.
By Orders made by Justice Campton on 27 October 2023, the wife was appointed trustee for sale of the Suburb C property with her to receive, after the discharge of the registered mortgage and the payment of adjustments on settlement, the balance of the proceeds of sale.
The wife in her affidavit sets out that she has been attempting to sell the property and has in part been frustrated in that process by various caveats lodged on the property by the second and third-named respondents.
Each of the second and third-named respondents assert that they entered into loan agreements in remarkably similar terms with the husband.
Those loan agreements provide for the payment of a sum of money by the lenders to the husband; in the case of the second respondent, it provides for a loan that attracts interest at 18 percent and in the case of the third respondent interest at 25 percent.
The wife has an application before the court pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”) in relation to these and other transactions entered into by the husband.
The solicitor for the second respondent contended that his client had a caveatable interest in the subject property but could not take me to any authority that would support the basis that the agreement entered into between the husband and his client provided for a caveatable interest.
The agreement merely records that to protect the lender and borrower the borrower gives a full personal guarantee on all assets and investments if the borrower does not pay back within three years of the date of the advance. In that respect that would have expired on or about 10 June 2024.
The second respondent who seeks injunctive relief in this court does not provide an undertaking as to damages.
The second respondent’s solicitor indicated that his client was concerned that a sale of the property at $3.25 million may be under value but provided no basis for saying so.
I am satisfied that there is evidence that the wife has been attempting to sell this property for some time and has been frustrated in her attempts by the lodging of caveats against the property for which I am satisfied there is no caveatable interest.
The wife has put before the court evidence as to a valuation of the property and the proposal to sell the property at $3.25 million, which is $250,000 more than the valuation.
I am satisfied that the wife, conscious as she is of her obligations as a trustee, has brought evidence before the Court that there is a purchaser who is willing to pay over and above the current market estimate of the property.
The applications as drafted sought to restrain in the case of the second respondent the wife from accessing her own interest in the property and sought to restrain in the case of the third respondent her dealing with the funds again in relation to her own interest in the property other than for the purchase of real estate.
I am not satisfied that there is any basis for a restraint of the wife in dealing with the Orders that were made by Campton J.
Those Orders provide for the wife to receive a sum of money from the proceeds of sale. She is legally entitled to half of the net proceeds of sale so, in essence, we are talking about a sum of money that, assuming that there is a sale at the current offer price and subject to payment of the existing secured creditor which is something in the order of about $900,000, then at most there might be a sum available for distribution between various creditors of about $800,000 or $900,000.
I am not satisfied that there is a basis at all for the injunctions as sought by the second and third respondents.
The matter is back before me on 10 January 2025. That is either shortly after a contract will have settled or shortly before and this matter can be re-listed then in the event that there is a contract exchanged.
I will require the wife to give notice to the second and third respondents of any exchange of contracts and she is to provide to the second and third respondents a copy of the contract.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 November 2024
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