Kasan and Kasan & Anor (No 2)

[2020] FamCA 1135

FAMILY COURT OF AUSTRALIA

KASAN & KASAN AND ANOR (NO. 2) [2020] FamCA 1135

FAMILY LAW – ORDERS – where the second Respondent seeks an amendment of the orders that prevented the parties from dealing with certain proceeds of sale – approach best likely to protect the pool of property – risks associated with potential fire sale – orders made to permit the Respondents to apply the proceeds of sale to the repayment of debt

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Kasan

1st RESPONDENT: Mr Kasan

2nd RESPONDENT: Mr Dawood

FILE NUMBER: SYC 2539 of 2020

DATE DELIVERED: 20 October 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: David Legal

COUNSEL FOR THE 1ST RESPONDENT: Mr Kerr

SOLICITOR FOR THE 1ST RESPONDENT: Maclarens Lawyers

COUNSEL FOR THE 2ND RESPONDENT: Mr Kerr

SOLICITOR FOR THE 2ND RESPONDENT: Maclarens Lawyers

Orders

IT IS ORDERED, UNTIL FURTHER ORDER, BY CONSENT:

1. That the directions hearing before Registrar Mordaunt on 23 October 2020 be vacated.

2. That each party shall be at liberty to request for information and/or documents from the other party/parties within 14 days with such request to be responded to within 14 days thereafter.

3. That in the event that either party seeks to file and serve any further Application in a Case they are to do so within 42 days together with any supporting Affidavit.

4. That any Response to an Application in a Case together with a supporting Affidavit is to be filed within 14 days of service of the Application as provided for in the preceding Order.

5. That the matter be listed before Justice Gill on 18 February 2021 at 10am. 

IT IS FURTHER ORDERED THAT

1. The parties are entitled to appear by Microsoft teams on that occasion.

2. That the First and Second Respondents be restrained from dealing with any of the assets of the entities, including but not limited to real estate, bank accounts and/or plant and equipment, owned by the entities, other than in the ordinary course of business, so that the First and Second Respondents may apply the proceeds of sale of B Street to, or in relation to, the repayment of the debt owed by C Pty Limited to D Pty Limited the subject of Supreme Court proceedings 2020/….

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 Kasan & Kasan 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 CANBERRA

FILE NUMBER: SYC 2539 of 2020

Ms Kasan

Applicant

And

Mr Kasan

1^st Respondent

And

Mr Dawood

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Second Respondent seeks an amendment of the orders that prevented the parties from dealing with certain proceeds of sale of property currently held on behalf of either the First or Second Respondent. 

2. The Second Respondent seeks an amendment to that order to enable the monies which are the proceeds of sale of B Street to be paid out to D Pty Limited in relation to a debt owed by the C Pty Limited.

3. That application is neither consented to, nor opposed to on behalf of the Wife, on the basis that the application has only come to them at a late stage, and there has been an inability to take instructions.  The basis on which the amelioration of the protection is sought is that D Pty Limited have commenced Supreme Court proceedings against C Pty Limited, which are in the short-term future, likely to result in a default judgment being made against C Pty Limited, which I infer is on the basis that C Pty Limited is not in a position to defend the claim made by D Pty Limited.

4. The effect of that default judgment, according to the Second Respondent, is the sale of a property held by C Pty Limited at E Street, Suburb F.  The options, therefore, in relation to the proceedings, are either the payment of a sum of cash to D Pty Limited, which will forestall the Supreme Court action, or the potential fire sale of E Street, Suburb F. 

5. The issue then comes down to which approach is best likely to protect the pool of property as it relates to the Applicant and First Respondent, or the property of the Second Respondent.

6. On balance, rather than a potential fire sale of E Street, Suburb F, the payment of the sum of money currently held referable to B Street is the preferable course of action.  If it is the case that the amount is paid then the result of the payment will presumably be a reduction otherwise in indebtedness so that there will be no net loss to the Wife in taking such an action. 

7. The risks that accompany the sale of E Street are not only the risks that come from a potential fire sale as a result of default judgment being obtained in the Supreme Court, but also a secondary risk which is the likelihood of the attraction of a Capital Gains Tax obligation.  The nature of that obligation has not been identified, however, the risk of that obligation has been identified. 

8. Rather than triggering such an event at this point of time, it seems appropriate to best protect the pool by enabling the payment to be made from the B Street proceeds and orders will be made accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 October 2020

Associate: 

Date:  3 February 2021