FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Galip & Galip (No 5) [2025] FedCFamC1F 11
File number: SYC 1278 of 2023 Judgment of: SCHONELL J Date of judgment: 17 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside an order – Application to vary an order – Orders made on 27 October 2023 – Where the wife sought to be appointed trustee for the husband in relation to his interests in a series of companies seeking a realization of the assets of those companies – Where the respondents opposed the wife being appointed trustee contending the more appropriate remedy being the appointment of a receiver – Where a failure to accede to the wife’s application would not frustrate her ability to take part in the final hearing – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39
Australian Securities and Investments Commission & Rich (2003) FLC 93–171; [2003] FamCA 1114
Shamon & Shamon [2021] FamCA 417
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 10 January 2025 Place: Sydney Counsel for the Applicant: Mr Young Solicitor for the Applicant: Abbas Jacobs Lawyers Counsel for the First Respondent: Mr McCrudden The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Nelson Solicitor for the Second Respondent: JB Solicitors Counsel for the Third Respondent: Mr Ratham Solicitor for the Third Respondent: Bartier Perry Lawyers Solicitor for the Fourth Respondent: George Xylas Solicitor Counsel for the Fifth and Sixth Respondents: Ms Bromberger Solicitor for the Fifth and Sixth Respondents: Origin Lawyers The Seventh, Eighth and Ninth Respondents: Did not participate 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 (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
10 JANUARY 2025
THE COURT ORDERS THAT:
THE COURT ORDERS THAT:
1.Orders are made in accordance with paragraphs 1 to 22 of a document titled “Third Respondent’s Proposed Orders – 10 January 2025” filed 10 January 2025 (as amended and marked as Exhibit 1) as set out hereunder:
“1. [Ms WW] be joined as the fourth respondent.
2. [Mr AC] be joined as the fifth respondent.
3. [AL Pty Ltd] ACN […] be joined as the sixth respondent.
4. [Ms YY] be joined as the seventh respondent.
5. [Mr AF] be joined as the eighth respondent.
6. [Mr AG] be joined as the ninth respondent.
7.That forthwith the Husband, in his capacity as director and shareholder of the relevant entity which is the registered proprietor of the following properties, will do all acts and things and sign and provide all documents necessary within 3 business days of demand…
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- Galip & Galip (No 5) [2025] FedCFamC1F 11
- Case
- [2025] FedCFamC1F 11
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether Ms Galip should be appointed as trustee for Mr Galip's interests in the companies, or if the appointment of a receiver would be more appropriate. The court considered the nature of the dispute, the interests of the parties, and the potential outcomes of each remedy. Schonell J concluded that appointing Ms Galip as trustee would not frustrate her ability to participate in the final hearing and that the appointment of a receiver was more suitable in this case.
Schonell J reasoned that the appointment of a receiver would better protect the assets of the companies and ensure that the interests of all parties were considered. The court also noted that the failure to appoint Ms Galip as trustee would not prevent her from participating in the final hearing. Therefore, the court dismissed Ms Galip's application and ordered that a receiver be appointed instead. The court also made several orders regarding the sale of certain properties and the disclosure of financial documents by the parties.
The final orders of the court included the appointment of a receiver for Mr Galip's interests in the companies, the sale of certain properties, and various procedural orders to ensure the efficient conduct of the proceedings. The court also noted that the overarching purpose of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) should be considered by the parties. The consequences of non-compliance with these orders could include orders for costs, including on an indemnity basis.
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
First Respondent
MR DONNELLY
Second Respondent
XX PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
10 JANUARY 2025
THE COURT ORDERS THAT:
THE COURT ORDERS THAT:
1. Orders are made in accordance with paragraphs 1 to 22 of a document titled “Third Respondent’s Proposed Orders – 10 January 2025” filed 10 January 2025 (as amended and marked as Exhibit 1) as set out hereunder:
“1. [Ms WW] be joined as the fourth respondent.
2. [Mr AC] be joined as the fifth respondent.
3. [AL Pty Ltd] ACN […] be joined as the sixth respondent.
4. [Ms YY] be joined as the seventh respondent.
5. [Mr AF] be joined as the eighth respondent.
6. [Mr AG] be joined as the ninth respondent.
7. That forthwith the Husband, in his capacity as director and shareholder of the relevant entity which is the registered proprietor of the following properties, will do all acts and things and sign and provide all documents necessary within 3 business days of demand by any party, to effect the market and sale of the:
(a) property known as [BB STREET, SUBURB CC], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(b) property known as [3 PP STREET, SUBURB QQ], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(c) property known as [1 PP STREET, SUBURB QQ], NSW[…] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(d) property known as [2 PP STREET, SUBURB QQ], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(e) property known as [LL STREET, SUBURB MM], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(f) property known as [NN STREET, SUBURB CC], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifiers […], […] and […];
(g) property known as [K STREET, SUBURB L], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(h) property known as [SS STREET, SUBURB H], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifiers […], […], […], […];
(i) property known as [AM STREET, SUBURB AN], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(j) property known as [RR STREET, SUBURB AO], NSW […] being the whole of the land comprised in Certificate of Title Folio Identifier […];
(together, “the Properties”) and in particular will:
(i) list the Properties for sale with [AS Real Estate] (“the Agent”);
(ii) execute all documents requested by the Agent for the sale of the Properties including the Agent’s contract in a form agreed upon by the Husband and the Wife and in the event that the Husband and the Wife cannot agree on the terms of the Agent’s contract within seven days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees;
(iii) give such instructions as are necessary to a legal practitioner agreed upon by the Husband and the Wife within seven days of the date of this Order and failing agreement the Husband shall forthwith in writing nominate two legal practitioners from which the Wife shall within a further seven days select one and failing which the Husband will select one who shall be the legal practitioner appointed (“the Legal Practitioner”);
(iv) market the Properties for sale by public auction on a date within six weeks of the date of the selection of the Agent (“the First Auction”) at a reserve price agreed between the Husband and the Wife and the Third Respondent and failing agreement within 14 days of the date of this order in the sum to be determined by an independent valuer with the Third Respondent to nominate three valuers within a further 7 days and the wife to select one within a further 7 days failing which the Third Respondent shall nominate the valuer with the Husband to pay the costs of the valuer;
(v) in the event that the Properties do not sell at the First Auction, market the property for sale with the Agent by way of private treaty for a period of 12 weeks during which time accept any offer made to purchase the Property within 5% of the reserve price of the First Auction unless the Husband and the Wife otherwise agree;
(vi) in the event that the Properties are not sold at the First Auction and is not sold in the period provided for sale by private treaty, market the Property for sale by public auction with the Agent on a date within six weeks of the date of the conclusion of the period of sale by private treaty at a reserve price agreed between the Husband and the Wife and failing agreement 5% below the reserve price at the First Auction;
(vii) attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached will negotiate with the highest bidder and the second highest bidder and will accept the highest offer to purchase made within 5% of the reserve price set for that auction unless the Husband and the Wife otherwise agree;
(viii) execute the contract for sale in a form agreed to by the Husband and the Wife and in the event that the Husband and the Wife fail to agree on the terms of the contract for sale the terms recommended by the Legal Practitioner will be adopted;
(ix) co-operate in every way with the Agent in relation to the sale of the Properties at all times requested by the agent and ensure that the Properties are in a neat and clean condition;
(x) execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so;
(xi) the Husband is to provide the Wife and/or any party to the proceeding with any document including any communication relevant to undertaking or carrying out any task referred above;
(xii) the Husband and Wife are to ensure that any costs to be incurred in effecting these orders are reasonable and necessary;
(xiii) the Husband and Wife must do all things necessary to achieve a sale price of the Properties at market value; and
(xiv) the Husband is directed to not act unreasonably in effecting these orders.
8. That on settlement of the sale of the Properties the Husband and Wife will do all acts and things necessary to distribute the proceeds of sale in the following manner and priority:
(i) payment of the agent’s commission, marketing and advertising costs, auctioneer’s fees and any other expense properly incurred in respect of the sale of the Properties;
(ii) payment of legal costs of sale;
(iii) payment of any amount outstanding to any water authority or local council in respect of the Properties not otherwise taken up as a credit in favour of the vendor;
(iv) payment of the amount required to effect a discharge of the registered mortgagees secured on the title of the Properties;
(v) the balance being the net sale proceeds to be paid into Court if appropriate or otherwise a controlled monies account, or alternatively, the Wife’s solicitor’s trust account, earning interest pending further order.
9. Pursuant to Section 106A of the Act, in the event either party refuses or neglects to execute any deed or instrument necessary to give effect to Order 7 then the Registrar of a Court of competent jurisdiction in relation to the Act is appointed to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.
10. That pending further order of the Court, and other than complying with Order 7 above, the Husband is restrained by way of injunction from selling, disposing, transferring, dealing with or further encumbering any real property in his sole name, or held jointly with any other person including by which the husband is a director of and has a beneficial entitlement to any real property as shareholder in the following entities:
(a) [GG Pty Ltd].
(b) [KK Pty Ltd].
(c) [AP Pty Ltd].
(d) [Q Pty Ltd].
(e) [J Pty Ltd]].
(f) [EE Pty Ltd].
(g) [FF Pty Ltd].
(h) [Galip Investments Pty Ltd].
(i) [AQ Pty Ltd].
(j) [AR Pty Ltd].
(k) [JJ Pty Ltd].
(l) [P Pty Ltd].
11. By 14 February 2025, the fourth, fifth, sixth, seventh, eighth and ninth respondents file any Points of Defence.
12. By 28 February 2025, the fourth, fifth, sixth, seventh, eighth and ninth respondents file any affidavits in opposition to the applicant’s points of claim.
13. By 14 February 2025, any of the respondents file or amend their applications claiming the final relief they seek against those properties together with the basis upon their respective entitlements.
14. By 28 March 2025, the applicant file her trial affidavit and any further affidavits which she relies on at trial.
15. By 30 April 2025, any of the respondents to file their trial affidavits and any further affidavits which they intend to rely on at trial.
16. By 20 May 2025, any of the parties to file any affidavits in reply to the trial affidavits.
17. The proceedings be listed for a Trial Management Hearing on 20 June 2025.
18. List the matter for final hearing commencing 5 days on 14 July 2025.
19. Within 14 days of the date of these orders, the Husband provide to the solicitors for the parties all financial documents previously disclosed to the Wife in these proceedings.
20. Within 14 days of the date of these orders, to the extent not already provided in Order 19 above, the Husband is to provide to the solicitors for the parties the documents referred to in Annexure A to these orders in respect of the entities referred to in Order 10 above for the period 1 January 2021 to 1 January 2025.
21. Liberty to restore the matter on 3 days’ notice.
22. The Court notes that, in these orders “Encumber” means: mortgaging, charging, pledging, granting any other security over title to the Properties or its sale proceeds in any way so as to restrict free and clear title from being passed, or increasing the indebtedness to any person holding a current security over the Properties or its sale proceeds.
Annexure A
1. financial statements and financial accounts;
2. company taxation returns;
3. business activity statement returns;
4. bank statements, records of term deposits, financial investments, and accounting statements (to the extent they exist);
5. documents recording the companies present net asset position;
6. documents recording cash on hand presently held by the companies;
7. documents recording assets, including real property, presently held by the companies for its own benefit (including assets which the companies may hold on trust);
8. in respect of 7 above, any document recording any encumbrance[s], including but not limited to any mortgage[s] over any such assets including the present value of such encumbrance as at 10 January 2025;
9. default notices or demands made by any lender claiming any rights in relation to any property;
10. any document recording the companies shareholding or interests in any entity in Australia or overseas; and
11. any document recording any of the companies assets being used or applied as any form of security including collateral security.”
AND THE COURT LATER ORDERS IN CHAMBERS THAT:
2. Pursuant to s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the parties are to note and comply with the overarching purpose as identified in s 67 of the Act and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Court Event
3. The proceedings are listed for trial for five days commencing on 14 July 2025.
Hearing fees
4. The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 28 days prior to the trial date.
Material to be filed
5. On or before 13 June 2025 each of the applicant and first respondent are to file and serve:
(a) an updating Financial Statement
(b) an undertaking as to disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
6. Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
Non-compliance
7. The compliance with these directions is not optional. The consequences of non‑compliance can include orders for costs, including on an indemnity basis.
8. In the event that a party does not comply with these directions the court will give consideration to proceeding with the matter on the basis of evidence filed to the date of non-compliance.
9. In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated including non-compliance, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Balance Sheet
10. The Applicant shall not later than 28 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
(a) the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable)
(b) wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy
(c) upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values and
a final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.
Subpoenas
11. Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable not later than 14 days prior to the trial date and are to be inspected prior to the first day of hearing.
Documents to be prepared for the Court
Objections
12. Each party shall, not later than 28 days prior to the trial date:
(a) notify the other party in writing of any objection to any material in any affidavit filed by the other party
(b) specify the paragraph or part of the paragraph objected to and
(c) detail the grounds of the objection.
The other party shall reply to the objections in writing within 7 days.
The parties before the Trial shall confer in relation to any objections and provide to the Court not later than 7 days prior to the trial date a list setting out:
(a) the agreed deletions from each affidavit and
(b) the objections to be argued on the hearing date and the ground for the objections.
Case Outline
13. Not later than 14 days prior to the trial date, each party is to file and serve a Case Outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a) a list of the material relied upon
(b) a brief chronology listing significant events that are relevant to the issues to be determined by the Court
(c) a summary of argument outlining the legal and factual basis for their claimed relief
(d) a minute of order sought
Joint Chronology
14. Not later than 7 days prior to the trial date the parties are to confer and thereafter forward to my Associate a joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account.
List of Issues
15. Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision what that party contends to be the issues in the proceedings.
Factual Findings
16. Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision the factual findings that party will contend should be made by the Court and in relation to each factual finding there is to be referenced the paragraph number in the Affidavit and/or a precise reference to the document in the Annexures or Exhibits that supports the making of the factual finding.
Trial Plan
17. Not later than 48 hours prior to the trial date the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time including submissions.
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.
Background
Background to the litigation
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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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