Imbardelli and Imbardelli & Ors

[2019] FamCA 733

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI AND ORS [2019] FamCA 733

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – where the wife filed an application in a case seeking the enforcement of consent orders – where the parties recently entered into interim consent orders in relation to the property proceedings – where the husband failed to pay monies owing to the wife in accordance with those consent orders – where orders are made to enable the sale of real property owned by the parties in order to facilitate the interim distribution of funds – where orders are made for the removal of caveats and the joinder of interested parties.

FAMILY LAW – PRACTICE AND PROCEDURE – joinder – where the second, third, fourth and fifth respondents have caveats over the real property – where the husband has monies owing to his brother and family – where the paternal family have lodged caveats over the real property – where the caveats are to be removed – where the respondents are to file an application in the proceeding seeking repayment of monies owing to them from the proceeds of sale.

FAMILY LAW – COSTS – indemnity costs – where the husband is ordered to pay the costs of the wife on an indemnity basis.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Imbardelli

FIRST RESPONDENT:	Mr Imbardelli
SECOND RESPONDENT:	Mr I Imbardelli

THIRD RESPONDENT: K Pty Ltd

FOURTH RESPONDENT: Ms Z Imbardelli

FIFTH RESPONDENT: Ms Todd

FILE NUMBER: MLC 8876 of 2009

DATE DELIVERED: 8 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 8 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pavone

SOLICITOR FOR THE APPLICANT: AMT Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Potter

SOLICITOR FOR THE FIRST RESPONDENT: M & K Lawyers Group Pty Ltd

COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENT: Mr Murray

SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENT: RM Commercial & Family Lawyers

Orders

1. Paragraphs 2 and 3 of the Orders made by the Honourable Justice McEvoy on 27 May 2019 be and are hereby discharged.

2. The Wife hereby be appointed agent for the sale of the property at Suburb J Victoria, more particularly described in the Certificate of Title (Volume … Folio …) (“the property”) pursuant to the Orders made 27 May 2019 and upon completion of the sale, be authorised to deal with the proceeds of the sale as follows:

   (a)       first, in satisfaction of all costs of the sale;

   (b)second, in satisfaction of the Orders made 27 May 2019 by the Honourable Justice Macmillan for the payment of $43,000 to the Wife plus interest accrued thereon;

   (c)third, the sum of $100,000 to the Wife in satisfaction of paragraph 1 of the Orders made by Justice McEvoy on 27 May 2019 plus interest accrued thereon;

   (d)fourth, the sum of $100,000 by way of partial property settlement to the Husband to be paid into his solicitor’s trust account;

   (e)fifth, such amount determined by this Court after the payment in (d) herein to secure the Husband’s asserted loans from his family members to be paid into the Husband’s solicitor’s trust account to be held on trust pending application by any third party seeking payment and/or further order of this Court; and

   (f)sixth, the balance to be held in trust by the Wife’s Solicitors on behalf of the Husband and Wife pending written agreement by them or further Court order as to how such funds be applied.

3. The wife authorises the selling agent to liaise with the husband in respect of any offers for the sale of the property.

4. Mr I Imbardelli, in his personal capacity and as Director and Shareholder of K Pty Ltd (“the Company”), is joined to these proceedings as a Second Respondent.

5. The Husband and Second Respondent personally, and in their respective capacity as Directors and Shareholders of K Pty Ltd, be and are hereby restrained from exercising any power of appointment to vary, alter or change the Company pending further order.

6. K Pty Ltd be joined to these proceedings as the Third Respondent.

7. The Third Respondent be restrained by injunction from doing any act or thing which would have the effect of encumbering, or further encumbering the B Street or BB Town real properties without the prior written consent of the Wife or further Court Order and from loaning, advancing, distributing or paying any monies save in the usual course of business.

8. Ms Z Imbardelli as Caveator over the Suburb J property is joined to these proceedings as a Fourth Respondent.

9. Within 28 days if so advised the Fourth Respondent make Application to this Court for repayment of the $35,000 estimated to be owing to her by the Husband, and failing such application and provided the caveat lodge by her over the Suburb J property has been removed, she thereafter be removed as a party to these proceedings.

10. Ms Todd as Caveator over U Street, Suburb J is joined to these proceedings as a Fifth Respondent.

11. Within 28 days if so advised the Fifth Respondent make Application to this Court for repayment of the $24,000 estimated to be owing to her by the Husband, and failing such application and provided the caveat lodge by her over the Suburb J property has been removed, she thereafter be removed as a party to these proceedings.

12. Within 28 days the Second, Fourth and Fifth Respondents respectively do all acts and things required to cause the caveats lodged by them or on their behalf over the Suburb J property to be removed at their respective expense.

13. The parties do all acts and things required to obtain sworn valuations within 28 days of the following real properties:

    (a)       Y Street, L Town Vic;

    (b)       Y Street, L Town Vic;

    (c)       B Street, Suburb C Vic;

    (d)       AA Street, BB Town Vic;

    with the costs of same to be met by the Husband at first instance.

14. The parties obtain a joint sworn valuation by 30 October as to the Husband’s interest in any entity, including but not limited to K Pty Ltd and the Imbardelli Family Trust at the Husband’s expense at first instance.

15. The parties do all acts and things required to facilitate the valuations including but not limited to:

    (a)timely provision of documents and information to the valuers as requested;

    (b)providing access to real properties;

    (c)the valuers be as agreed between the Husband and Wife in writing and failing agreement the Wife nominate 3 valuers for each valuation and within 7 days of receiving said nomination/s respectively, the Husband chose.

16. The Husband sign all documents and do all acts and things necessary to facilitate the sale in accordance with order 2 hereof and failing which, then a Registrar of the Melbourne Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such necessary sale documentation on behalf of the Husband upon lodgement of such documentation and the filing of an affidavit of a solicitor on behalf of the Wife as to the said failure.

17. The Husband pay the Wife’s costs of and incidental to her application filed 28 August 2019 on an indemnity basis and such sum be paid by the Husband from the amount received by the Husband pursuant to paragraph 2(d) of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imbardelli & Imbardelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8876 of 2009

Ms Imbardelli

Applicant

and

Mr Imbardelli

First Respondent

and

Mr I Imbardelli

Second Respondent

and

K Pty Ltd

Third Respondent

and

Ms Z Imbardelli

Fourth Respondent

and

Ms Todd

Fifth Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an amended application in a case filed on 28 August 2019 in which the wife seeks, amongst other things, orders concerning the sale of a property at Suburb J, Victoria (“the Suburb J property”). On 27 May 2019 I made orders by consent in relation to the sale of this property in the event that the husband did not pay a sum of money to the wife by way of part property settlement. It is common ground that this amount has not been paid.

2. The wife also seeks orders for the joinder of certain interested parties to the proceeding, for the maintenance of the status quo in relation to other properties and entities, for the valuation of certain properties and interests in entities, that the parties to be joined make application for the repayment of monies said to be owed to them, and for the removal of caveats which have been lodged on title to the Suburb J property. The wife has sworn an affidavit in support of the amended application which was filed on 2 August 2019. Properties at Y Street, L Town, Y Street, L Town, B Street, Suburb C, and AA Street, BB Town are the subject of the application for a sworn valuation.

3. The orders sought by the wife were ultimately not opposed by the husband.

4. The orders sought by the wife are opposed by Mr I Imbardelli and Ms Z Imbardelli, who are two of the individual parties against whom certain orders, including joinder and removal of caveat orders, are made. They seek that the wife’s amended application be dismissed and that the wife pay their costs incurred in connection with the amended application on an indemnity basis.

5. Mr I Imbardelli and Ms Z Imbardelli make no substantive submissions in support of the relief that they seek, although they have filed an affidavit on 11 September 2019 which deposes, in essence, to various sums of money which they say have been loaned to them by the husband for the purposes of the litigation and which they say are owed to them by the husband.

6. In these circumstances and in the absence of any substantive submissions being made in opposition to the orders that are sought, I will make the orders sought in the amended application, save that the reference in paragraph 1 to orders 3 and 4 of my orders of 27 May 2019 should in fact be a reference to paragraphs 2 and 3 of my orders of 27 May 2019. Insofar as paragraph 2(d) of the orders sought is concerned, that order will simply be “fourth, the sum of $100,000 by way of partial property settlement to the husband to be paid into his solicitor’s trust account”.  The balance of that subparagraph in the amended application as filed will not be the subject of an order. 

7. I will insert a new order 3, after 2(f), in the following terms:  “The wife authorises the selling agent to liaise with the husband in respect of any offers for the sale of the property”. The following orders will be renumbered from 4, continuing thereafter.  The order that was order 11 in the amended application in a case, which is now order 12, will read that “within 28 days, [rather than 7 days], the second, fourth and fifth respondents respectively do all acts and things required to cause the caveats lodged by them or on their behalf over the Suburb J property to be removed at their respective expense”. The balance of the orders that I will make are as set out in the amended application in a case.

8. I am content that orders in these terms appropriately preserve the status quo and protect the position of all parties. Insofar as my jurisdiction to order the removal of the caveats is concerned, I refer to my analysis of the Court’s accrued jurisdiction to order removal of caveats in Tailor & Tailor [2019] FamCA 383, at [56]-[64].

9. The wife has also made an application that the husband pay the costs of this application on an indemnity basis. The basis of this submission is threefold. First, that the husband has had notice of this application and has had ample time to respond and negotiate with the wife’s solicitors; secondly, that the application was brought about due to the failure of the husband to pay monies owing to the wife in accordance with previous consent orders; and thirdly, that other than some small amendments, the position of the husband is that he accepts all the orders sought by the wife.

10. In response, the husband says no more than the wife has not been completely successful in obtaining the relief she sought. However I do not accept that this is so. The change that was made to order 2(d) of the orders proposed by the wife was minor, and was agreed by her in response to a request by the husband that it be made. Had the husband engaged with the wife in relation to her application earlier, this change could have been made at that time. The fact that the husband had not engaged with the wife in relation to her application prior to 8 October 2019 and has come to court today in no position to oppose the making of the orders, and has not made any substantive submissions against them, is an appropriate basis for me to conclude, having regard to s.117(2A)(c), (d) and (e) of the Act, that the husband should be ordered to pay the wife’s costs of the application on an indemnity basis, and I will so order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 8 October 2019.

Associate: 

Date:  22 October 2019