Kador and Ultramod

Case •

[2009] FamCA 712

•

27 July 2009

FAMILY COURT OF AUSTRALIA

KADOR & ULTRAMOD [2009] FamCA 712
FAMILY LAW – CONSENT ORDERS – Final s 79 Orders – s 79(2) Just and equitable
Family Law Act 1975 (Cth)
APPLICANT: MS KADOR
RESPONDENT: MR ULTRAMOD
FILE NUMBER: MLC 11004 of 2007
DATE DELIVERED: 27 JULY 2009
PLACE DELIVERED: MELBOURNE
PLACE HEARD: MELBOURNE
JUDGMENT OF: YOUNG J
HEARING DATE: 27 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SALAMANCA
SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS
COUNSEL FOR THE RESPONDENT: MR DICKSON
SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE

Orders

IT IS ORDERED BY CONSENT:

  1. That the Husband pay to the Wife the sum of $772,325 (“the payment”) as follows:

    a.the sum of $12,381 (“the first instalment”) forthwith upon the making of these Orders (“the first date”);

    b.the balance of $759,944 (“the second instalment”) on or before 31 August 2009 or earlier by agreement (“the settlement date”);

  2. THAT:

    a.paragraph 1 of Orders dated 24 October 2007 (“the Interim Orders”) be discharged (save for any arrears) with effect from the settlement date and subject to compliance by the Husband with paragraph 1(b) hereof;

    b.Paragraph 2 of the Interim Orders be discharged with effect from the settlement date and subject to compliance by the Wife with paragraphs 3(a), (b) and (c) and 7(b) hereof.

  3. THAT contemporaneously with compliance by the Husband with his obligations pursuant to paragraph 1(b) the Wife shall:

    a.Transfer to the Husband, at the expense of the Husband, her right, title and interest in the property known as and situate at E in the State of Victoria, being the whole of the land contained within Certificate of Title Volume … Folio … (“the [E] property”) free of all encumbrances save and except Commonwealth Bank of Australia Home Loan No … (“the Home Loan”) secured by registered mortgage No … (“the [E] mortgage”).

    b.Tender to the Husband releases of any personal guarantees granted by the Husband for or on behalf of:

    i.S Pty Ltd (ACN …);

    ii.The S Family Trust (S Pty Ltd as Trustee);

    iii.S Investments Pty Ltd (ACN …);

    iv.The Wife (save and except any personal guarantee granted by the Husband in respect of the Home Loan);

    v.CBA BBL Loan No …;

    c.and the Wife do all acts and things and sign all necessary documents to cause the Husband to be released from the said guarantees;

    d.deliver up vacant possession of the E property to the Husband and all keys, remote controls and security codes relating to the E property.

  4. THAT contemporaneously with compliance by the Wife with her obligations pursuant to paragraphs 3(a), (b) and (c):

    a.the Husband at his expense cause to be discharged the E mortgage.

    b.the Husband at the expense of the Wife:

    i.transfer to the Wife his shareholding in S Investments Pty Ltd;

    ii.assign and transfer to the Wife all his interest and entitlement in the S Family Trust (“the Trust”) including all entitlements (if any) standing to his credit in the accounts of the Trust;

    iii.renounce, resign and relinquish any right, title, interest, position, office, power or prospective power (including any Power of Appointment or Power of Joint Appointment) exercisable by him with respect to the Trust;

    iv.otherwise relinquish any claim, interest or entitlement he may have with respect to the Trust, S Pty  Ltd and S Investments Pty Ltd (“the entities”);

    v.cease to be a signatory of CBA account No … in the name of S Pty Ltd;

    vi.transfer to the Wife his right, title and interest in Subaru motor vehicle registration number A… in the possession of the Wife;

    c.the Husband make available for collection by the Wife the refrigerator in his possession.

  5. THAT the Husband be entitled to possession of the furniture and chattels listed in the Schedule hereto which the Wife shall not remove from the E property.

  6. THAT until such time as the Wife delivers up vacant possession of the E property  pursuant to paragraph 3(c) (“the vacation date”) the Wife shall:

    a.pay as and when the same fall due all rates, taxes, charges, insurances and outgoings (including utilities) in respect of the E property, and that there be a pro-rata apportionment of such expenses between the parties as at the vacation date upon receipt of relevant assessments, invoices or accounts;

    b.maintain the E property in a reasonable state of repair.

  7. THAT pending the Wife’s compliance with her obligations pursuant to paragraphs 3(a), (b) and (c) the Wife by herself, her servants and agents and in her capacity as a director of S Pty Ltd and S Investments Pty Ltd be and is hereby restrained from:

    a.divesting herself of any office or shareholding in, or control of S Pty Ltd (atf The S Family Trust) or S Investments Pty Ltd or divesting herself or reducing the value of her shareholding in S Pty Ltd or S Investments Pty Ltd, including but not limited to the following:

    i.varying, modifying, changing or amending her powers and duties;

    ii.resigning any office held by her;

    iii.selling, transferring, alienating or encumbering any shares;

    iv.issuing or permitting to be issued any additional shares;

    v.appointing any other director or office holder;

    vi.selling, assigning or encumbering or otherwise dealing with the assets of S Investments Pty Ltd and the S Family Trust, PROVIDED ALWAYS that the wife may place the real property known as and situate at P, Victoria, being the whole of the land contained within Certificate of Title Volume … Folio … (“the [P] property”) on the market for sale UPON CONDITION that any proceeds of sale be held in the Trust’s CBA Bank account pending full discharge by the wife of her obligations under paragraphs 3(a), (b) and (c).

    b.directing or causing the direction of any rental income from the P property to be paid to any person, save for the Australian Taxation Office with respect to outstanding S Pty Ltd tax payments and payments of tax in accordance with the Australian Taxation Office instalment arrangements dated 6th of June 2009 for S Investments Pty Ltd, or into any bank account other than the existing CBA S Pty Ltd bank account, the subject of the Interim Orders.

    c.selling, assigning, encumbering or otherwise dealing with the E property.

  8. THAT the Husband be and is hereby restrained from distributing or causing any entity at his direction to distribute income to the S Family Trust in respect of the financial year commencing 1 July 2009 or any subsequent financial year thereafter.

  9. THAT subject to clause 9A the Wife pay or cause to be paid and indemnify and keep indemnified and save harmless the Husband in respect of:

    a.THAT any claim, action, suit or demand made against the Husband by any person or entity (including but not limited to the entities listed in (i)-(iii), the Australian Taxation Office and creditors of the entities listed in (i)-(iii) below) arising from or in respect of and including the Husband’s use of, interest in, transactions with or relationship with:

    i.S Pty Ltd;

    ii.The S Family Trust;

    iii.S Investments Pty Ltd (except as provided in paragraph 14);

    iv.the P Property (except as provided in paragraph 15);

    v.the E property, referable to the period up to the date of compliance by the Wife with her obligations pursuant to paragraphs 3(a), (b) and (c);

    vi.CBA Home Loan No … resulting from the Wife’s non-compliance with paragraph 2 of the Interim Orders and/or paragraph 7(b) hereof;

    vii.CBA BBL Loan No …;

    viii.motor vehicle registration No A…;

    b.any debt personally guaranteed by the Husband in respect of the entities, property or loans listed in paragraphs 9(a)(i), (ii), (iii), (iv), (v),(vi) and (vii) hereof;

    c.any amount owed by the Husband to, or claimed against the Husband by any of the entities in paragraphs 9(a)(i), (ii) and (iii) hereof and from all actions proceedings, costs, claims and demands in respect thereof;

    d.save as otherwise provided any unpaid direct or indirect taxation (including GST and CGT) assessed or hereinafter assessed or re-assessed in the name of the Husband in relation to income, salary or wages, payments, fringe benefits, taxation, transfers, benefits or gains (including Capital Gains) derived by him or otherwise deemed to have been derived by him from any or all of the entities or property in paragraphs 9(a)(i), (ii), (iii) and (iv) hereof and/or from the transfer, assignment or rollover of any interest in the entities or property in paragraphs 9(a)(i), (ii), (iii) and (iv) hereof and/or any amount owed by the Husband to, or claimed against the Husband by, any of the entities in paragraphs 9(a)(i), (ii) and (iii) hereof, inclusive of fines, penalties and interest and from all costs, claims, demands and proceedings in respect thereof.

    e.all costs, duties, taxes, monies and direct and indirect taxation (including GST and CGT) payable by or assessed or hereinafter assessed or re-assessed in the name of the Husband in relation to income, benefits, payments, or gains (including Capital Gains) either:

    i.derived by him pursuant to the operation and/or enforcement of these orders; or

    ii.otherwise deemed to have been derived by him pursuant to the operation and/or enforcement of these orders; or

    iii.arising from or in relation to transfers, assignments, resignations, waivers, forbearances, transactions or agreements entered into, undertaken or effected by him pursuant to the operation and/or enforcement of these Orders

    iv.inclusive of fines, penalties and interest and from all costs, claims, demands and proceedings in respect thereof.

    f.All rates, taxes, charges, insurances and outgoings (including utilities) in respect of the E property up to the date of transfer of the E property to the Husband.

9ATHAT the indemnities pursuant to clause 9 above shall not extend to any income tax, penalties or interest assessed, re-assessed or charged to the husband resulting solely from any action by the Husband or his agents to directly or indirectly cause distributions of income to be made by or on behalf of the Husband to the Trust in the 2008 and 2009 financial years which are subsequently determined not to be valid provided that the exclusion in this clause 9A shall not apply if S Pty Ltd, the Trust and S Investments Pty Ltd have not taken, and continue not to take, all prudent and necessary actions within their power required to attempt to substantiate and verify that all such distributions of income to the Trust were validly made and received.

  1. THAT the Husband pay or cause to be paid and indemnify and keep indemnified and save harmless:

    a.the Wife in respect of any claim, action, suit or demand made against the Wife in respect of  the E property, referable to the period after the date of compliance by the Wife with her obligations pursuant to paragraphs 3(a), (b) and (c) hereof.

    b.the S Family Trust in respect of any income tax assessed as payable arising directly from any distribution by the Husband to the S Family Trust with respect to the financial year commencing 1 July 2009 and any subsequent financial year.

  2. THAT the parties each be responsible for payment of and shall each mutually indemnify the other as to 50% of any claim, action, suit or demand made against the Husband and/or the Wife jointly and/or severally by the Husband’s parents Mr Ultramod Snr and/or Mrs Ultramod Snr in respect of monies advanced, loaned or gifted to the Husband and the Wife jointly and/or severally during the marriage.

  3. THAT the wife:

    a.instruct the accountants for S Investments Pty Ltd to consult with the Husband (or with the Husband’s nominated accountants) as to the preparation of the 2009 Income Taxation Return for S Investments Pty Ltd;

    b.provide to the Husband and/or to the Husband’s nominated accountants, a copy of the 2009 draft Income Taxation Return and 2009 Income Tax Estimate for S Investments Pty Ltd, 30 days prior to lodgement of the said Income Tax Return for S Investments Pty Ltd (the Husband to acknowledge receipt within 7 days thereafter);

    c.provide to the Husband a copy of the 2009 tax payment record for S Investments Pty Ltd within 7 days of receipt of same;

    d.pay the Australian Taxation Office all quarterly instalments for S Pty Ltd and S Investments Pty Ltd as they fall due (including the forthcoming payment of approximately $5,625 relating to S Investments Pty Ltd) which sums are to be paid from the account referred to in paragraph 7(b) hereof

  4. THAT the parties have liberty to apply with 7 days notice with respect to any dispute concerning the preparation and/or lodgement of the 2009 Income Tax Return of S Investments Pty Ltd.

  5. THAT provided the Wife has complied with her obligations pursuant to paragraphs 12(a),(b), (c) and (d) and (if applicable) a determination has been made by the Court pursuant to paragraph 13,  the Husband pay or cause to be paid to the Australian Taxation Office by no later than the due date for payment, 50% of income tax payable in the name of S Investments Pty Ltd for the financial year ending the 30 June 2009.

  6. THAT in the event of the sale of the P property prior to 31 December 2010 the Wife shall advise the Husband of the occurrence of such sale and in the event of the sale proceeds being subject to Capital Gains Tax in the name of S Pty Ltd or any beneficiary of the S Family Trust (including but not limited to the Wife):

    a.the Wife provide to the Husband an unqualified opinion from a qualified practising accountant addressed to the Husband, setting out the calculation of the Capital Gains Tax payable upon the sale of the P property confirming the amount of actual Capital Gains Tax payable and the anticipated date that such Capital Gains Tax is payable (such opinion to be provided not less than 30 days prior to the said anticipated payment date);

    b.the Husband pay or cause to be paid to the Australian Taxation Office by no later than the anticipated date that such Capital Gains Tax is due as set out in the Accountant’s opinion provided to the Husband pursuant to paragraph 15(a), $48,500 or 50% of the Capital Gains Tax payable, whichever is the lesser.

  7. THAT any taxation refunds paid or payable to S Pty Ltd (atf S Family Trust) or to the beneficiaries of that Trust to whom income has been distributed in the financial years ending 30 June 2008 and 2009, (including but not limited to S Investments Pty Ltd) be divided equally between the Husband and the Wife, and the wife shall do all acts and things and sign all necessary documents to cause one half of such refunds to be paid to the Husband within seven (7) days of receipt of same.

16ATHAT in the event of any re-assessment of taxation in the name of the Husband arising from distributions made by or on behalf of the Husband to the S Family Trust for the financial years ending 30th June 2008 and 30th June 2009 the Wife shall pay or cause to be paid to the Husband any consequential taxation refunds and/or interest payable to the S Family Trust, S Pty Ltd and/or S Investments Pty Ltd referable to the financial years ending 30th June 2008 and 30th June 2009 within 7 days of receipt of same.

  1. THAT upon default by the Husband in payment of:

    a.the first instalment by the first date, interest shall be payable upon so much of the first instalment as is then outstanding at the penalty rate of interest prescribed by the Family Law Rules as and from the first date until the date that the Wife receives payment of the first instalment;

    b.the second instalment by the settlement date, interest shall be payable upon so much of the second instalment as is then outstanding at the penalty rate of interest prescribed by the Family Law Rules as and from the second date until the date that the Wife receives payment of the second instalment.

  2. THAT upon default by the Wife of her obligations pursuant to paragraph 3(a) and/or 3(b) and/or 3(c) for in excess of 30 days, (and not because of a default and/or omission by the Husband), the Wife personally and in her capacity as a director of S Pty Ltd do all acts and things and sign all necessary documents to cause to be sold the P property at a sale price as agreed between the parties but failing agreement at a price nominated by Mr Y, Valuer of Y Property Consultants (who shall be instructed within 7 days of the parties failing to reach agreement as to the sale price) and upon sale the proceeds of sale shall  be distributed in the following manner and priority:

    a.in payment of agent’s commission, auction expenses (if any), valuation fees (if any) and legal costs of sale;

    b.in payment of apportionable outgoings;

    c.in payment of all sums required to discharge CBA Mortgage registered No … encumbering the P property;

    d.in payment of all sums required to discharge CBA Business Loan BBL Loan No …;

    e.in payment of all monies required to procure the release of the Husband from any personal guarantees pursuant to paragraph 3(b);

    f.in payment of any outstanding obligations of the Wife pursuant to paragraph 6.

    g.in payment of the balance of proceeds to the Wife or as she may direct.

  3. THAT upon default by the Husband for in excess of thirty (30) days of his obligations to pay the first instalment to the Wife by the first date and/or to pay the  second instalment to the Wife by the second date (and not because of a default and/or omission by the Wife), the wife shall do all acts and things and sign all necessary documents to cause to be sold the E property at a price as agreed between the parties, but failing agreement at a price nominated by Mr Y, Valuer of Y Property Consultants (who shall be instructed within 7 days of the parties failing to reach agreement as to the sale price) and upon sale, the proceeds of sale shall be distributed in the following manner and priority:

    a.in payment of agent’s commission, auction expenses (if any), valuation fees (if any) and legal costs of sale;

    b.in payment of apportionable outgoings;

    c.in payment of all monies required to discharge CBA registered Mortgage No …, including CBA Loan No …;

    d.if applicable, in payment of so much of the first instalment as is outstanding together with interest thereon to the Wife;

    e.in payment of so much of the second instalment as is outstanding together with applicable interest thereon to the Wife;

    f.in payment of the balance of proceeds to the Husband.

  4. THAT liberty be reserved to the parties upon 7 days notice to apply with respect to the manner, terms and/or conditions of any sale pursuant to paragraphs 18 and/or 19.

  5. THAT the Wife otherwise retain absolutely and to the exclusion of the Husband the following:

    a.funds standing to the credit of any bank accounts in her sole name;

    b.the Wife’s superannuation entitlements;

    c.the furniture and chattels situate in the E property (except those as listed in the Schedule), which the Wife shall cause to be removed from the real property on or before the settlement date.

    d.the entities and the assets of the entities.

    e.the Subaru motor vehicle.

  6. THAT the Husband otherwise retain absolutely and to the exclusion of the Wife the following:

    a.the E property.

    b.his partnership entitlements in his partnership business;

    c.the Volvo motor vehicle registered in his sole name;

    d.his superannuation entitlements;

    e.furniture and chattels presently in his possession and the furniture and chattels listed in the Schedule;

    f.funds deposited in bank accounts in his sole name.

  1. THAT the Wife hold her interests in the E property and in S Pty Ltd (atf S Family Trust) upon trust pursuant to these Orders.

  2. THAT the parties do all acts and things and sign all necessary documents to give validity and operation to these Orders.

  3. THAT should any party fail or refuse to sign any document necessary to give effect to these Orders, a Registrar or Deputy Registrar of the Family Court of Australia at Melbourne be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to sign any document for and on behalf of and in the name of the defaulting party.

  4. THAT these Orders shall be binding upon the heirs, executors, administrators and assigns of each party respectively.

  5. THAT unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

    a.each party be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action) registered in the name of or in the possession or control of such party or to which that party is legally or beneficially entitled as at the date of these Orders;

    b.monies standing to the credit of the parties in any joint bank account shall be paid to the Wife and the parties shall each cause such account to be closed forthwith;

    c.the wife retain any superannuation benefits belonging to or earned by the Wife, including the Wife’s entitlements in AMP Customsuper;

    d.the husband retain  any superannuation benefits belonging to or earned by the Husband, including the Husband’s entitlements in Tower Master Fund and Vic Super;

    e.that any policy of life insurance or assurance remain the sole property of the owner named thereon;

    f.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

  6. THAT upon the Husband’s compliance in full with his obligations pursuant to the provisions of the Child Support Agreement between the parties dated 24 October 2007 (“the Interim Child Support Agreement”) inclusive of any arrears, the Wife:

    a.immediately do all acts and things and sign all necessary documents to direct and request the Child Support Agency to cease to collect payments pursuant to the Interim Child Support Agreement.

    b.be and is hereby restrained from further directing or requesting the Child Support Agency to collect payments pursuant to the Interim Child Support Agreement;

    c.pay and indemnify and keep indemnified and save harmless the Husband in respect of any claim, action, suit or demand made by the Child Support Agency against the Husband as a result of the Wife’s failure to comply with paragraphs 28(a) and/or (b) hereof.

  7. THAT the application of the Wife for Final Orders filed on the 3rd day of October 2007, the wife’s Amended Application for Final Orders filed the 19th November 2008, the Husband’s Response to Final Orders filed the 18th day of October 2007 and the Husband’s Amended Response filed the 28th day of November 2008  be otherwise dismissed.

  8. THAT all documents produced upon subpoena to the Court shall be forthwith returned by the Subpoena Clerk, Melbourne Registry of the Family Court, to the person(s) or organization(s) providing same.

THE COURT NOTES:

A:THAT pursuant to Section 81 of the Family Law Act the parties intend these Orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B:THAT the parties have this day entered into a Binding Financial Agreement with respect to spousal maintenance and a Binding Child Support Agreement with respect to Child Support.

C:THAT the parties intend the interim orders made by the Honourable Justice Dessau on 24 October 2007 remain in effect pending the implementation of paragraphs 1 – 4 inclusive and paragraph 7 of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Kador & Ultramod is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11004 of 2007

MS KADOR

Applicant

And

MR ULTRAMOD

Respondent

REASONS FOR JUDGMENT

  1. In the matter of Kador & Ultramod, I have before me minutes of consent orders on a final property and financial basis.  Experienced counsel appear for both parties.  Each of the solicitors are experienced and well known to the court and, at the final level of knowledge, both clients are professionals working for well-established and respected businesses within Melbourne.

  2. The orders as outlined to me provide for an equal division of the property and assets of the parties.  Effectively there is a balance of the husband’s extended financial contributions through family, as against the superior income that he earns, and will likely continue to earn, when contrasted to the wife and her more modest employment, and slightly greater responsibility for the children, who spend time with the parties on an eight night–four night basis in each fortnight.

  3. I have a background knowledge of the matter.  I have read the file a week or so ago when it was assigned to my list and when I thought it might have been commencing today because of accurate assessments of other cases.  When it became apparent I was not going to reach this matter, I did endeavour to find some other judge to hear the matter, but that was not possible, and it was listed in my defended list today, on the basis that it would not be reached, but it would afford counsel and solicitors an opportunity to further discuss and resolve all issues.

  4. The good news for the parties in the court in this matter is the settlement is concluded.  Minutes of orders are before me, which, with one exception, and that is the deletion of the contingency providing for a joint tenancy arrangement in real or personal property between the parties, which will be deleted there from, I will make the other orders, notwithstanding my concern as to the necessity to provide for orders in paragraphs 24, 25 and 26 hereof.  I do so at the specific request of all counsel, solicitors and parties, but still not understanding the real need therefore.

  5. There is an 81 notation as to finality accompanying the order and I note that, separately, there is a binding financial agreement that I have not been provided with, and I leave to the parties to execute and obtain.  The schedule of personal chattels is annexed, and the parties will understand those documents and their responsibilities there under.

  6. I conclude under section 79(2) of the Family Law Act 1975 that the orders are just and equitable, relying predominantly upon the consent and the time taken to negotiate these orders and the informed position that all parties have been in.  I indicate, therefore, I will make these orders by consent and the matter will be removed from the list. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          

Key Legal Topics

Areas of Law

  • Family Law

  • Contract Law

  • Property Law

Legal Concepts

  • Consent

  • Remedies

  • Costs

  • Damages

  • Injunction

  • Penalty

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