FEDERAL CIRCUIT COURT OF AUSTRALIA
| IMBERG & CABREY | [2020] FCCA 1053 |
| Catchwords: FAMILY LAW – Property – undefended hearing – where respondent did not participate in Court proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 117. |
| Cases cited: In the Marriage of Blackand Kellner (1992) 106 FLR 154 |
| Applicant: | MS IMBERG |
| Respondent: | MR CABREY |
| File Number: | SYC 2614 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 4 February 2020 |
| Date of Last Submission: | 4 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rosic |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| No appearance by the Respondent |
ORDERS
That within 60 days of the date of these orders, the husband shall:
(a)Do all things and sign all documents as may be necessary to transfer to the wife the whole of his right, title and interest in the property situated at and known as A Street, Suburb B in the State of New South Wales, being the whole of the land comprised in Lot ... of deposited plan ..., folio identifier at ... (“the A Street, Suburb B property”); and
(b)Pay to the wife the sum of $100,000 by way of adjustment of property interests pursuant to section 79 of the Family Law Act 1975 (Cth);
That simultaneously with the husband’s compliance with order (1) hereof, the wife do all acts and things and sign all documents to:
(a)Refinance the ANZ mortgage ... secured against the A Street, Suburb B property into her sole name;
(b)Obtain a release from ANZ in respect of any guarantee provided by the husband in relation to the ANZ mortgage ... secured against the property situated at and known as C Street, Suburb D in the State of New South Wales, being all the land comprised at folio identifier ... (“the C Street, Suburb D property”) in relation to loan accounts BSB ... account ..66 and BSB ... account ...54;
and shall thereafter indemnify the husband in relation to any liability arising with respect to the said mortgages and loan accounts.
That within 14 days of the date of these orders, the parties shall do all such things and sign all such documents as may be necessary to:
(a)Transfer and assign any credit or debit loan account held by the wife in the E Trust to the husband; and
(b)Relinquish the wife’s right as to capital and income in the E Trust; and
(c)Retire the wife as a beneficiary of the E Trust.
That the husband indemnify the wife in respect of all liabilities, claims, actions, and suits in relation to the E Trust and F Pty Ltd, including but not limited to outstanding income tax.
That the husband indemnify the wife in relation to all loans obtained by the husband in relation…
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- IMBERG & CABREY [2020] FCCA 1053
- Case
- [2020] FCCA 1053
- Decision Date
CaseChat Overview and Summary
The Court was required to determine the appropriate orders for the division of property and the allocation of financial responsibilities between the parties. This included the transfer of interests in real property, the payment of a sum of money, the refinancing of mortgages, the management of trusts and company shares, and the distribution of funds held in trust and bank accounts. The Court also needed to address potential non-compliance by the husband and make provision for the enforcement of its orders.
The Court's reasoning, as evidenced by the orders made, focused on achieving a final division of the parties' financial resources. The orders directed the husband to transfer his interest in a property and pay a significant sum to the wife, while the wife was to take on sole responsibility for refinancing a mortgage and was indemnified by the husband in relation to certain liabilities. The parties were to transfer interests in a trust and company, with the husband assuming sole ownership of his shares and interest in the trust, and the wife receiving sole entitlement to specific funds. Provisions were made for the appointment of registrars to execute documents in case of non-compliance, and specific mechanisms were established to secure the wife's entitlement, including a charge and potential sale of the husband's interest in another property, and the possibility of garnishing future payments. The Court also made orders regarding the sole entitlement of each party to various other assets and resources.
The Court ordered the husband to transfer his interest in the A Street, Suburb B property and pay $100,000 to the wife within 60 days. The wife was to refinance the mortgage on that property and obtain a release from a guarantee related to the C Street, Suburb D property, with the husband indemnifying her for those liabilities. The parties were to transfer loan accounts and the wife's interests in the E Trust to the husband, with the husband indemnifying the wife for liabilities related to the E Trust and F Pty Ltd, and for loans associated with G franchises. The wife was to receive sole entitlement to funds held by Coleman Greig Lawyers and in a specific ANZ bank account. The orders clarified the sole ownership of various other assets between the parties, including the C Street, Suburb D property and the wife's superannuation entitlement for the wife, and the husband's shares in F Pty Ltd, his interest in the E Trust, and the M Street, Suburb N property for the husband. In the event of non-compliance, registrars were appointed to execute necessary documents. Further provisions were made for the husband's restraint from dealing with the M Street, Suburb N property, a charge over it for the $100,000 payment, and the wife's appointment as trustee for its sale if the husband failed to comply with the payment order, with provisions for garnishing future payments if the sale proceeds were insufficient. The wife was to serve the orders on the husband within seven days. No order was made as to costs.
Orders
Orders of the court
1.
That within 60 days of the date of these orders, the husband shall:
(a) Do all things and sign all documents as may be necessary to transfer to the wife the whole of his right, title and interest in the property situated at and known as A Street, Suburb B in the State of New South Wales, being the whole of the land comprised in Lot ... of deposited plan ..., folio identifier at ... (“the A Street, Suburb B property”); and
(b) Pay to the wife the sum of $100,000 by way of adjustment of property interests pursuant to section 79 of the Family Law Act 1975 (Cth);
2.
That simultaneously with the husband’s compliance with order (1) hereof, the wife do all acts and things and sign all documents to:
(a) Refinance the ANZ mortgage ... secured against the A Street, Suburb B property into her sole name;
(b) Obtain a release from ANZ in respect of any guarantee provided by the husband in relation to the ANZ mortgage ... secured against the property situated at and known as C Street, Suburb D in the State of New South Wales, being all the land comprised at folio identifier ... (“the C Street, Suburb D property”) in relation to loan accounts BSB ... account ..66 and BSB ... account ...54;
and shall thereafter indemnify the husband in relation to any liability arising with respect to the said mortgages and loan accounts.
3.
That within 14 days of the date of these orders, the parties shall do all such things and sign all such documents as may be necessary to:
(a) Transfer and assign any credit or debit loan account held by the wife in the E Trust to the husband; and
(b) Relinquish the wife’s right as to capital and income in the E Trust; and
(c) Retire the wife as a beneficiary of the E Trust.
4.
That the husband indemnify the wife in respect of all liabilities, claims, actions, and suits in relation to the E Trust and F Pty Ltd, including but not limited to outstanding income tax.
5.
That the husband indemnify the wife in relation to all loans obtained by the husband in relation to and all debts associated with G franchises.
6.
That the wife be solely entitled to the funds held in the trust account of Coleman Greig Lawyers in respect of the sale of the parties’ properties at Suburb H and at J Street, Suburb K, and these orders operate as authority and direction to Coleman Greig Lawyers to pay such funds to the wife.
7.
That the wife is solely entitled to the funds held in the ANZ Bank offset account number ...92 in the joint names of the parties, and the parties shall forthwith do all things necessary to have those funds paid over to the sole benefit of the wife.
8.
That unless as otherwise provided for in these orders, the wife is the sole owner in law and in equity as between herself and the husband of the C Street, Suburb D property, the Motor Vehicle 1 registration ..., the whole of her entitlement to benefits as a member of the L Super Fund, and all other real property, personal property, financial assets and financial resources currently within her power, possession or control.
9.
That unless as otherwise provided for in these orders, the husband is the sole owner in law and in equity as between himself and the wife of his shares in F Pty Ltd, his interest in the E Trust, the real property at M Street, Suburb N in the State of New South Wales, being all of the land comprised in folio identifier ... (“the M Street, Suburb N property”), and all other real property, personal property, financial assets and financial resources currently within his power, possession or control.
10.
That in the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then the Court appoints pursuant to section 106A of the Family Law Act 1975 (Cth) the registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, document, or instrument in the name of the party who has so failed, refused or neglected, and to do all acts and things necessary to give the liberty and the operation to such deed, document or instrument.
11.
That pending compliance by the husband with order 1(b) hereof:
(a) The husband is restrained from disposing of, or further encumbering or otherwise dealing with his interest in the M Street, Suburb N property; and
(b) The payment due to the wife pursuant to order 1(b) is charged against the interest of the husband in the M Street, Suburb N property, and for the purposes of this order the wife is permitted to lodge a caveat against the title to the M Street, Suburb N property and the wife shall cause that caveat to be withdrawn within 48 hours of receiving payment from the husband.
12.
That in the event that the husband fails to comply with order 1(b) hereof:
(a) The husband shall pay to the wife, in addition to the said sum of $100,000, interest thereon at the rate prescribed from time to time by the Family Law Rules 2004 (Cth), in accordance with rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) from the date 60 days after the date of these orders until the date of payment;
(b) The wife is, upon the failure of the husband to comply with order 1(b), appointed as trustee for the sale of the M Street, Suburb N property and shall thereafter do all such things that may be necessary to list the M Street, Suburb N property for sale by private treaty or auction and to sell the M Street, Suburb N property for the best price reasonably obtainable as soon as practicable and to distribute the proceeds of such sale as follows:
(i) in payment of real estate agent’s commission and expenses on the sale;
(ii) in payment of proper legal costs and disbursements of and incidental to the sale;
(iii) in discharge of the mortgage to Westpac Banking Corporation secured over the M Street, Suburb N property;
(iv) in adjustment of rates, levies and taxes on the M Street, Suburb N property;
(v) in payment to the wife of the sum of $100,000 or so much as is then still owing to the wife pursuant to order 1(b) together with the interest payable thereon; and
(vi) in payment of the balance then remaining to the husband;
(c) in the event that the wife does not receive sufficient moneys from a sale of the M Street, Suburb N property to constitute full compliance by the husband with order 1(b) and together with any interest accrued thereon, then the wife is at liberty to file and serve a third party debt notice upon O Pty Ltd and P Pty Ltd as trustee for P Pty Ltd Trust to garnish the weekly payments due to the husband and/or due to F Pty Ltd as trustee of the E Trust pursuant to the Sale of Business agreement dated April 2019, in favour of the wife for the sum outstanding and due to the wife pursuant to order 1(b) and any interest accrued thereon.
13.
That any application to be made by the husband pursuant to rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) must be made within 28 days after service upon him of a copy of these orders.
14.
That the wife cause a copy of these orders to be served upon the husband within seven days by each of the following methods:
(a) By forwarding the same as an attachment to an email to ...;
(b) By forwarding a sealed copy of the orders by ordinary prepaid post addressed to the husband at Q Street, Suburb R, NSW;
(c) By forwarding a sealed copy by ordinary prepaid post addressed to the husband care of S Street, Suburb T, NSW.
15.
That there be no order as to costs in relation to the preparation for the undefended final hearing and for the undefended final hearing.
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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