Krupin & Krupin (No 4)
[2024] FedCFamC1F 154
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Krupin & Krupin (No 4) [2024] FedCFamC1F 154
File number(s): BRC 5459 of 2014 Judgment of: HOWARD J Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – PROPERTY – Where Reasons for Judgment were delivered on 9 February 2024 – Where each of the parties had an opportunity to forward draft Orders to the Court reflecting the Reasons for Judgment – Final Orders made. Division: Division 1 First Instance Number of paragraphs: 10 Date of last submissions: 13 March 2024 Date of hearing: 13 March 2024 Place: Brisbane Solicitor for the Applicant: Mr Hofstee Solicitor for the First Respondent: Ms Jones Counsel for the Second Respondent: Mr Hartnett Solicitor for the Second Respondent: Genuine Legal Appearance for the Third and Fourth Respondent: Litigant in person ORDERS
BRC 5459 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KRUPIN
Applicant
AND: MS KRUPIN
First Respondent
MS ANGELOFF
Second Respondent
MS PETROV
Third Respondent
B PTY LTD
Fourth Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS ON A FINAL BASIS:
Appointment of Trustee for Sale
1.That pursuant to s 80(1)(e) and/or s 80(l)(k) of the Family Law Act 1975 (Cth) Mr CC of DD Lawyers (the Trustee) hereby be appointed as trustee for sale of:
(a)E Street, Suburb F in the State of Queensland being otherwise described as Lot … on RP … having title reference … (“the E Street, Suburb F property”). And:
(b)G Street, Suburb H in the State of Queensland, being otherwise described as Lot … on RP … having title reference … (“the G Street, Suburb H property”).
and that the E Street, Suburb F property and G Street, Suburb H property vest in the Trustee for the purposes of sale.
2.That without limiting the Trustee's powers under the terms of these orders, but subject to the terms of these orders, the Trustee is authorised to do all things, including:
(a)signing all documents necessary to cause a sale of both the E Street, Suburb F property and the G Street, Suburb H property, including but not limited to:
(i)Appoint a real estate agent/s (the Listing Agent).
(ii)Sell by private treaty or auction.
(iii)Determine the listing price and/or reserve for an auction.
(iv)Determine the particulars and conditions of the sale.
(v)If deemed appropriate obtain a valuation for the purposes of determining the list price for a private treaty sale or the reserve for an auction.
(vi)Agree and determine the remuneration to be allowed to an auctioneer, estate agent, trustee or other person.
(vii)expend money on the E Street, Suburb F property and the G Street, Suburb H property in preparation for sale, as recommended by the Listing Agent.
(b)to sign on behalf of the previous registered owners, authorities to PEXA members to conduct the sale, all real estate listing authorities, mortgage discharge and release authorities, Form1 transfer and necessary documents required by the Land Titles office, that are required for the conveyancing process resulting from the sales or that are necessary to complete the settlement of the sale of the E Street, Suburb F property and the G Street, Suburb H property.
(c)Give notice in writing to the Applicant Husband Mr Krupin and Third Respondent Ms Petrov to vacate the E Street, Suburb F property.
(d)Pending the sale of the G Street, Suburb H property:
(i)continue to rent the G Street, Suburb H property.
(ii)Collect rent, and cause all rental income derived from the G Street, Suburb H property to be paid into an account nominated by the Trustee.
(iii)to apply the rental income to pay all costs associated with the property including but not limited to:
A.the home loan repayments on ANZ loan #…17.
B.the Council rates.
C.The water and sewerage charges.
D.House & landlord insurance premiums; and
E.general maintenance as is required from time to time.
(e)Use the funds (currently $35,425.74) held in the Trust Account of Hofstee Lawyers on behalf of the Applicant and First Respondent to pay:
(i)the minimum repayments payable on the ANZ home loan #…34 encumbering the E Street, Suburb F property, upon the Applicant vacating the property.
(ii)Any shortfall between the minimum repayments payable on the ANZ home loan #…34 encumbering the G Street, Suburb H property and the rental income received.
(iii)the rates, water and sewerage expenses for the E Street, Suburb F property and the G Street, Suburb H property.
(iv)The house and landlord insurance (including adequate fire, general and public risk liability insurance) for the E Street, Suburb F property.
(v)the house insurance (including adequate fire, general and public risk liability insurance) for the G Street, Suburb H property.
(f)Apply to this Court for any orders required by him to enable him to cause the sale of the E Street, Suburb F property and the G Street, Suburb H property.
3.That the Applicant and Third Respondent shall vacate the E Street, Suburb F property within 21 days of receiving written notice from the Trustee directing them to do so, and shall remove all chattels and personal effects at that time.
4.That on settlement of the sale of the E Street, Suburb F property the Trustee is authorised to deal with the proceeds in the following manner and priority:
(a)to discharge the ANZ home loan #…34 secured by way of a mortgage #…26 in favour of the Australia and New Zealand bank against the E Street, Suburb F property.
(b)to pay the Trustee’s reasonable costs.
(c)pay all costs, commissions and expenses of the sale and to pay any council rates, and other usual adjustments on sale in respect of the E Street, Suburb F property.
(d)to pay the conveyancing solicitor’s costs and outlays incurred.
(e)to the First Respondent any sum unpaid by the Applicant, required of him pursuant to Order 5 below.
(f)Thereafter, pay:
(i)to the Applicant, 55% less any costs incurred by the Trustee in removing any chattels, materials or waste left at the E Street, Suburb F property upon the Applicant vacating the property, with such payment to be made to such account as directed by the Applicant; and
(ii)to the First Respondent, 45% plus any costs incurred by the Trustee in removing any chattels, materials or waste left at the E Street, Suburb F property upon the Applicant vacating the property, with such payment to be made via deposit into the trust account of EE Lawyers.
5.That subject to these orders, pending settlement of the sale of the E Street, Suburb F property:
(a)the Applicant is at liberty to reside in the property until such time as the Trustee provides notice pursuant to Order 3 above, provided that he pays all costs associated with the E Street, Suburb F property including but not limited to the minimum home loan repayments on loan #…34, rates, water and sewerage, insurance and general maintenance.
(b)Upon the Applicant vacating the E Street, Suburb F property, the Trustee is at liberty to use the funds referred to in Order 2(e) and which are held in the Trust Account of Hofstee Lawyers on behalf of the Applicant and First Respondent, to meet all costs associated with the E Street, Suburb F property.
6.That while the Applicant remains living in the E Street, Suburb F property he will:
(a)maintain the said house in a clean and tidy condition.
(b)upon receipt of 24 hours’ prior written notice from the Trustee, Listing Agent or any agent appointed by the Trustee, make the E Street, Suburb F property available for inspection and shall cause the said house to be presented in a clean and tidy condition for such inspection.
7.That on settlement of the sale of the G Street, Suburb H property the Trustee is authorised to deal with the proceeds in the following manner and priority:
(a)to discharge the ANZ home loan #…17 secured by way of a mortgage #…87 in favour of the Australia and New Zealand bank against the G Street, Suburb H property.
(b)to pay the Trustee’s reasonable costs.
(c)to pay the costs, commissions, and expenses of the sale and to pay any council rates, outstanding land tax and other usual adjustments on sale in respect of the G Street, Suburb H property.
(d)to pay the conveyancing solicitor’s costs and outlays incurred.
(e)to the ATO, such sum (if any) as is required to pay the Applicant’s, First Respondent’s and Fourth Respondent’s (as trustee for the Krupin Family Trust’s) capital gains tax liability/ies arising from the sale of the G Street, Suburb H property, with such sum to be calculated pursuant to Orders 10 to 12 and held in the trust account of Hofstee Lawyers pending compliance with Order 15.
(f)The balance thereafter, to be divided between the Applicant and the First Respondent as follows:
(i)To the Applicant such sum calculated as follows:
(ii)(X + Y + Z) x 0.55 – X = sum payable to the Applicant
(iii)To the First Respondent such sum calculated as follows:
(iv)(X + Y + Z) x 0.45 – Y = sum payable to the First Respondent.
Where:
X = the sum of (-$42,615.18) + any sum paid to the Applicant pursuant to Order 4(f)(i) above or alternatively, if E Street, Suburb F has not settled, (-$42,615.18).
Y = the sum of (-$16,388.53) + any sum paid to the First Respondent pursuant to Order 4(f)(ii) above or alternatively, if E Street, Suburb F has not settled, (-$16,388.53).
Z = the balance left after compliance with Order 7(a) to 7(e) above.
8.That within 7 days of the date of these orders, the Applicant, Third Respondent and Fourth Respondent shall:
(a)provide to the Trustee all keys to both the E Street, Suburb F property and the G Street, Suburb H property.
(b)provide by way of email to the Trustee, the Applicant and to the First Respondent’s solicitors, a copy of:
(i)The tenant/s application/s, ID documents and signed rental tenancy agreement for each of the current tenants residing at the G Street, Suburb H property.
(ii)A copy of the rental ledger for each tenant resident at the G Street, Suburb H property.
(iii)Evidence of the rental bond paid, entry condition report, routine inspect reports, for the G Street, Suburb H property. And
(iv)The Change of Ownership form provided to the current tenants.
9.That the Applicant, First Respondent, Third Respondent and Fourth Respondent be restrained and an injunction issue restraining the parties from receiving or otherwise dealing with the rental income received from the G Street, Suburb H property and / or the E Street, Suburb F property, save for as provided for in these orders.
Calculation of CGT
10.That for the purpose of order 7(e) above:
(a)once a contract for the sale of the G Street, Suburb H property is achieved, the Applicant and First Respondent and the Third Respondent as sole Director of the Fourth Respondent as trustee for the Krupin Family Trust, shall do all such things as is necessary to cause an Accountant to provide in writing as soon as practicable and, if possible, by settlement of the sale of the G Street, Suburb H property, an estimate of the likely capital gains tax (CGT) payable by the Krupin Family Trust and the increased personal income tax payable by the Applicant and the First Respondent arising as a result of the sale of the G Street, Suburb H property.
(b)For the purpose of the immediately preceding subparagraph, the Applicant and Second Respondent shall provide to the First Respondent personally a copy of all tax invoices for capital expenses paid for the G Street, Suburb H property since 2014, with such materials to be provided within 7 days of a contract for the sale of G Street, Suburb H being achieved.
11.That for the purpose of appointing a joint Accountant;
(a)the First Respondent shall provide a panel of three (3) Accountants to the Applicant within seven (7) days of a contract for the sale of the G Street, Suburb H property being achieved.
(b)the Applicant shall select one (1) Accountant from the panel, within seven (7) days thereafter.
(c)If the Applicant fails to make such election, the First Respondent shall be at liberty to choose the joint Accountant.
12.That the Applicant, First Respondent and Third Respondent in her capacity as Director of the Fourth Respondent as trustee for the Krupin Family Trust shall provide to the Accountant all such documents and instructions as is required for the Accountant to provide an estimate of the likely CGT liability payable and that sum + $2,500 shall be retained in the trust account of Hofstee Lawyers pending compliance with Order 16, and the balance of the sale proceeds from the sale of the G Street, Suburb H property shall thereafter be distributed to the Applicant and First Respondent pursuant to Order 7(f)).
13.That within four (4) weeks of conclusion of the financial year within which the G Street, Suburb H property is sold:
(a)The Applicant and First Respondent shall lodge their personal tax returns for that financial year.
(b)The Third Respondent personally and in her capacity as Director of the Fourth Respondent as trustee for the Krupin Family Trust shall cause the tax return for the Krupin Family Trust to be lodged for that financial year.
14.That the Applicant and First Respondent are responsible for the costs associated with preparation of the accountant’s fees incurred in compliance with Orders 10 to 13 inclusive, and if one person pays the costs in full, they shall be reimbursed 50% of those costs from any cash sum payable to the other party pursuant to these Orders.
15.That upon the Applicant, First Respondent and the Third Respondent in her capacity as Director of the Fourth Respondent as trustee for the Krupin Family Trust, receiving their Notice of Assessment from the ATO:
(a)The Applicant shall provide a copy of his Notice of Assessment to Hofstee Lawyers and to the First Respondent, upon which Hofstee Lawyers will arrange payment of the Applicant’s CGT liability from the sale of the G Street, Suburb H property in full.
(b)The First Respondent shall provide a copy of her Notice of Assessment to Hofstee Lawyers and to the Applicant, upon which Hofstee Lawyers will arrange payment of the First Respondent’s CGT liability from the sale of the G Street, Suburb H property in full.
(c)The Third Respondent as sole Director of the Fourth Respondent as trustee for the Krupin Family Trust, shall provide a copy of the Krupin Family Trust’s Notice of Assessment to Hofstee Lawyers, the Applicant and the First Respondent, upon which Hofstee Lawyers will arrange payment of the Krupin Family Trust’s CGT liability from the sale of the G Street, Suburb H property in full.
(d)If there are surplus funds remaining after compliance with the subparagraphs immediately above, then same shall be distributed by Hofstee Lawyers:
(i)55% to the Applicant; and
(ii)45% to the First Respondent.
(e)If there is a shortfall in the funds held by Hofstee Lawyers after compliance with the subparagraphs immediately above, then same shall be paid:
(i)55% by the Applicant; and
(ii)45% by the First Respondent.
Orders relating to the Second Respondent
16.That pursuant to s 78 and/or 80 of the Family Law Act 1975 (Cth) it is declared that the real property situated at C Street, Suburb D in the State of Queensland more particularly described as Lot … on RP …, having Title Reference … (“the C Street, Suburb D property”) registered in the name of Ms Angeloff (“the Second Respondent”) remain the sole property of the Second Respondent (both in law and in equity) and not be included in the overall property pool available for distribution between the Applicant and the First Respondent.
17.That within 14 days of the date of these orders, the Applicant do all such things and sign all such deeds, documents and instruments as is necessary to remove, at his sole expense, the caveat #… secured against the C Street, Suburb D property.
18.That should the Applicant refuse, fail or neglect to comply with the immediately preceding order, the Second Respondent shall arrange the removal of the caveat, with the costs of same to be paid by her in the first instance, and for her to be reimbursed in full from any sum payable to the Applicant pursuant to order 4(f) or 7(f)(i), whichever is the earlier.
19.That the Applicant's application for the relief sought in paragraphs 1 to 10 of the Applicant's amended application filed 14 February 2023 be dismissed.
Claim by the Third and Fourth Respondent
20.That it is declared that the Third Respondent does not hold any equitable interest or entitlement in either the E Street, Suburb F property or the G Street, Suburb H property.
21.That the claims made by the Third Respondent in her Response materials filed in these proceeding are dismissed, but without prejudice to any claim the Third Respondent may make against the Applicant.
22.That the claim of the Fourth Respondent is dismissed.
Other orders
23.That unless otherwise provided for in these Orders, the Applicant shall indemnify the First Respondent and keep the First Respondent indemnified in relation to the following:-
(a)Any and all credit cards held in the Applicant’s name. And
(b)Any and all personal loans and / or taxation liabilities owed by Applicant to any person, bank, the ATO or financial institution, save as otherwise provided for in these Orders.
24.That unless otherwise provided for in these Orders, the First Respondent shall indemnify the Applicant and keep the Applicant indemnified in relation to the following:-
(a)Any and all credit cards held in the First Respondent’s name.
(b)Any and all personal loans held in the First Respondent’s name.
(c)Any and all tax liabilities held in the First Respondent’s name save as otherwise provided for in these Orders.
25.That:
(a)within 14 days of being provided with the necessary documents from the Applicant, the First Respondent shall do all such acts and things and sign all necessary documents to relinquish any right, title and interest in the Krupin Family Trust in favour of the Applicant.
(b)from the date of these Order, the Applicant, Third Respondent and Fourth Respondent shall forever indemnify the First Respondent with respect to the Krupin Family Trust and B Pty Ltd (A.C.N. …64), including the payment of any taxation liability in arising at any time, either before or after the making of these orders.
26.That from the date of these orders, unless otherwise specified in these orders and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
(b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(d)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.
27.That:
(a)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within seven (7) days of being requested to do so.
(b)If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
(c)That the Applicant, First Respondent, Third Respondent and Fourth Respondent comply promptly with any requisitions issued by the Office of State Revenue, Land Titles Office, Main Roads Department and any other Government Department in relation to any document executed or transacted pursuant to or to put into effect the terms and conditions of these Orders.
(d)Any joint tenancy of the Applicant and First Respondent in any real or personal estate is hereby expressly severed.
28.That if either party defaults with respect to carrying out any obligations pursuant to these orders, the non-defaulting party shall be entitled to recover their costs of, and incidental to, enforcing these orders against the defaulting party with such costs to be calculated on an indemnity basis.
29.That the Application in a Proceeding filed by the Applicant on 7 December 2022 be dismissed.
30.That the Trustee has liberty to apply.
IT IS NOTED:
A.That the sum provided for in Order 7(f) was calculated as follows:
Assets Registered to Value Mr Krupin to retain Ms Krupin to retain Real property Sale proceeds of J Street Suburb K (Hofstee Trust Account) Joint $35,425.74 $19,484.16 $15,941.58 HH Bank Platinum credit card #…19 1st Resp $(8,163.95) $ - $(8,163.95) JJ Financial Service MasterCard #…19 1st Resp $(10,192.49) $ - $(10,192.49) FF Bank #…51 App $(52,810.36) $(52,810.36) $ - FF Bank #…51 App $(8,838.98) $(8,838.98) $ - ATO Liability 1st Resp $(24,108.91) $ - $(24,108.91) ATO Liability App $(2,450.00) $(2,450.00) $ - GG Bank #…19 Ms Krupin $10,135.24 $ - $10,135.24 Superannuation Mr Krupin $2,000.00 $2,000.00 $ - Total assets excluding E Street, Suburb F and G Street, Suburb H $(59,003.71) $(42,615.18) $(16,388.53) B.That on 9 February 2024 the Court ordered, inter alia:
“1. The Registrar of this Court shall forward a copy of these Reasons for Judgment to the Commonwealth Director of Public Prosecutions for consideration as to whether or not the applicant (Mr Krupin) has committed any offence under s 408C of the Criminal Code 1899 (Qld) (or any other offence) as outlined in these Reasons for Judgment and the Registrar of this Court shall make available, as may be required, the full transcript of these proceedings and exhibits and affidavits for inspection by any officers authorised in that behalf by the Commonwealth Director of Public Prosecutions or such other department or agency (including the Queensland Police Service and/or the Queensland Director of Public Prosecutions) as directed or requested by the Commonwealth Director of Public Prosecutions.”
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
The trial of this matter proceeded on 15, 16, 17, 18, 19 and 20 May and 19 July 2023. The date of the last submission was received on 19 July 2023. Judgment was reserved. Reasons for Judgment were delivered on 9 February 2024.
Each of the parties was given an opportunity to forward to the Court a draft Order reflecting the Reasons for Judgment.
Each of the proposed final orders will be marked as Exhibits in respect of the hearing that occurred on 13 March 2024.
The draft Order proposed by the first respondent was forwarded to the Court by her lawyers, EE Lawyers. The second respondent agrees with the terms proposed by the first respondent. That was confirmed again on 13 March 2024 by Mr Hartnett of counsel who appeared on behalf of the second respondent.
The applicant forwarded a proposed final Order but the proposed final Order did not reflect the Reasons for Judgment and, in addition, contained submissions. The proposed final Order submitted by the applicant was prepared by the applicant himself and he provided direct instructions to Hofstee lawyers to forward the document to the Court.
The third respondent (on her own behalf and on behalf of the fourth respondent) provided a proposed final Order. The proposal of the third and fourth respondents did not reflect the Reasons for Judgment that were delivered on 9 February 2024. Further, the proposed Order contained certain submissions in addition to some proposed Orders.
The Orders proposed by the first respondent and the second respondent are appropriate. Those proposed Order reflect the Reasons for Judgment that were delivered on 9 February 2024.
The final Orders which are attached to these Reasons for Judgment include, in Order 3, a reference to the fact that the applicant and the third respondent shall vacate the E Street, Suburb F property within twenty-one (21) days of receiving written notice from the Trustee directing them to do so. I consider this is appropriate because the applicant and the third respondent have been on notice since 9 February 2024 as to the outcome of the case and have well and truly been on notice since that date that they will be required to vacate the E Street, Suburb F property. The Court has required the appointment of a Trustee for Sale and I note that Mr CC, solicitor, has agreed to act as the Trustee for Sale in respect of the properties situated at E Street, Suburb F and G Street, Suburb H. Such an appointment is appropriate.
There are also some typographical errors that were contained in the proposed Order in paragraph 7. These have been attended to.
Finally, I have granted to the Trustee liberty to apply. Only the Trustee has liberty to apply.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 18 March 2024
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