FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamyar & Kamyar [2024] FedCFamC2F 1724
File number(s): PAC 3664 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 4 December 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable – orders made. Legislation: Family Law Act 1975 (Cth) Cases cited: Lotta & Lotta [2017] FamCA 50
Phillips & Phillips [2002] FamCA 350
Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 2-4 September, 24 November 2024 Place: Parramatta Solicitor for the Applicant: Mr Ndou, Lovemore Lawyers Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Shore Lawyers ORDERS
PAC 3664 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAMYAR
Applicant
AND: MR KAMYAR
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Within 8 weeks from the date of these Orders, the following shall occur simultaneously:
(a)The wife shall do all acts and things and execute all documents necessary to discharge the mortgage over the real property situated at and known as B Street, Suburb D, NSW (“the B Street property”) into her sole name;
(b)The husband shall transfer all of his right, title and interest in the B Street property to the wife;
(c)The wife shall pay to the husband the sum of $309,892.
2.Prior to or contemporaneously with Order 1, the parties shall each do all acts and things to cause the removal of any caveats registered on the B Street property AND THE COURT NOTES THAT any expenses relating to the removal of caveats relating to litigation finance of the husband are to be borne by him solely and any expenses relating to the removal of caveats relating to C Pty Ltd are to be borne by the wife solely.
3.In the event of default of the due payment under Order 1, the husband and wife shall forthwith do all acts and things and sign all documents necessary to effect a sale of the B Street property and by way of consequential arrangement:
(a)The listing prices shall be as agreed between the parties and if there is no agreement as recommended by the real estate agent.
(b)The B Street property shall be listed for sale by a private treaty with a real estate agent agreed upon between the parties and if there is no agreement then the wife shall nominate three agents and the husband shall select one.
(c)In the event that the B Street property has not been sold by or before a date three months from the date of listing for sale, then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the B Street property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no agreement then shall be…
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- Kamyar & Kamyar [2024] FedCFamC2F 1724
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- [2024] FedCFamC2F 1724
- Decision Date
CaseChat Overview and Summary
The court had to consider the contributions made by each party to the acquisition and maintenance of the property, their respective financial situations, and any other relevant factors that might influence a just and equitable outcome. It was also necessary to determine the method by which the property would be sold if the parties were unable to resolve the dispute through direct negotiation, and how the proceeds of any sale would be distributed.
Judge Newbrun ruled that the wife would be required to pay the husband $309,892 within eight weeks of the order, and that the wife would assume the mortgage over the B Street property in her sole name. The court further outlined detailed procedures for the sale of the property if the husband failed to make the payment within the stipulated time, including the appointment of a real estate agent and the terms under which the property would be sold. The court also made provisions for the distribution of the sale proceeds, ensuring that costs, rates, the mortgage, and the husband's payment were all satisfied before any remaining balance was allocated to the wife.
The final orders mandated the removal of any caveats on the property, the distribution of other personal property, and the liabilities of each party for any encumbrances on their respective properties. Additionally, the court provided for the appointment of a registrar to execute necessary documents on behalf of any party who refused to do so within 14 days of a written request.
Orders
Orders of the court
PAC 3664 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KAMYAR
Applicant
AND:
MR KAMYAR
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. Within 8 weeks from the date of these Orders, the following shall occur simultaneously:
(a) The wife shall do all acts and things and execute all documents necessary to discharge the mortgage over the real property situated at and known as B Street, Suburb D, NSW (“the B Street property”) into her sole name;
(b) The husband shall transfer all of his right, title and interest in the B Street property to the wife;
(c) The wife shall pay to the husband the sum of $309,892.
2. Prior to or contemporaneously with Order 1, the parties shall each do all acts and things to cause the removal of any caveats registered on the B Street property AND THE COURT NOTES THAT any expenses relating to the removal of caveats relating to litigation finance of the husband are to be borne by him solely and any expenses relating to the removal of caveats relating to C Pty Ltd are to be borne by the wife solely.
3. In the event of default of the due payment under Order 1, the husband and wife shall forthwith do all acts and things and sign all documents necessary to effect a sale of the B Street property and by way of consequential arrangement:
(a) The listing prices shall be as agreed between the parties and if there is no agreement as recommended by the real estate agent.
(b) The B Street property shall be listed for sale by a private treaty with a real estate agent agreed upon between the parties and if there is no agreement then the wife shall nominate three agents and the husband shall select one.
(c) In the event that the B Street property has not been sold by or before a date three months from the date of listing for sale, then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the B Street property upon the following terms:
(i) The auctioneer shall be as agreed upon between the parties and if there is no agreement then shall be as recommended by the real estate agent;
(ii) The auction shall take place within four months of the listing for sale;
(iii) The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer;
(iv) The parties shall equally share payment of any auction expenses payable before the B Street property is sold;
(v) In the event that the B Street property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and the wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further five weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
4. On completion of sale pursuant to Order 3, the parties shall cause the sale proceeds to be distributed in the following manner and priority:
(a) In payment of all costs, commissions and expenses of the sale;
(b) In payment of any council and water rates and maintenance levies outstanding in respect of the B Street property;
(c) In discharge of the mortgage;
(d) $309,892 to the husband;
(e) The balance then remaining to the wife.
5. Prior to or contemporaneously with settlement of the sale of the B Street property pursuant to Order 3, the parties shall each do all acts and things to cause the removal of any caveats registered on the B Street property AND THE COURT NOTES THAT any expenses relating to the removal of caveats relating to litigation finance of the husband are to be borne by him solely and any expenses relating to the removal of caveats relating to C Pty Ltd are to be borne by the wife solely.
6. Within 14 days of completion of Order 1 or of completion of sale under Order 3, the wife shall do all acts and things and execute all documents necessary to discharge the mortgage over the real property situated at and known as E Street, Suburb D, NSW, into her sole name, and the husband shall sign all documents presented to him by the wife to achieve such discharge.
7. Unless otherwise specified in these Orders, each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
8. Each party shall 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.
9. If either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit and Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
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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