Laskari & Laskari and Ors
[2014] FamCA 1183
•24 December 2014
FAMILY COURT OF AUSTRALIA
LASKARI & LASKARI AND ORS [2014] FamCA 1183
FAMILY LAW PROPERTY – husband and wife in joint venture with others to acquire city property and develop a trading company – assets of joint venture sold realising substantial loss- secured mortgagee moves to recover short fall in mortgage from the assets of two of six co-guarantors- - application under accrued jurisdiction and/or s.90AE to determine rights of contribution as between co-guarantors- splitting order made to provide for distribution of entitlement where no other asset available Albion Insurance Co Ltd v GIO (NSW) 1969 121 CLR 342
B Pty Ltd & Ors v K & Anor (2008) FLC 93-380
Bevan & Bevan [2013] FamCAFC 116
Brewer v Brewer (1953) 88 CLR 1
Burke v LFOT Pty Ltd (2002) HCA 17
Hunt v Hunt & Ors (2007) 36 FamLR 64
In the Marriage of R E Hill and H Gibbs - (1980) 6 Fam LR 27
Stanford v Stanford (2012) 193 ALR 70
Warby and Warby (2002) FLC 93-091
Family Law Act 1975 (Cth) ss 79, 90AE
APPLICANT: Ms Laskari
1st RESPONDENT: Mr Laskari
2nd RESPONDENT: K Pty Limited
3rd RESPONDENT: U Pty Limited
4th RESPONDENT: Mr N Laskari
5th RESPONDENT: Mrs S Laskari
6th RESPONDENT: Mr G Laskari
7th RESPONDENT: Ms X
FILE NUMBER: SYC 450 of 2010
DATE DELIVERED: 24 December 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 18, 20-22, 25-28 February 2013; 1 March 2013 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Mater
SOLICITOR FOR THE APPLICANT: Konstan Lawyers
COUNSEL FOR THE RESPONDENT: Mr DeRobillard
SOLICITOR FOR THE RESPONDENT: Diamond Conway Lawyers
COUNSEL FOR THE 2ND TO 7TH
RESPONDENTS:
Mr Millar
SOLICITOR FOR THE 2ND TO 7TH
RESPONDENTS
Paltos Briggs Family Lawyers
Orders
(1)A declaration that the 4th, 5th 6th and 7th respondents, as co-guarantors are indebted to the husband and wife in the sum of $413, 953, and the 4th to 7th respondents are jointly and severally liable to the husband and wife in that sum.
(2)Order that the wife sign any necessary documents presented to her by or on behalf of the husband as may be necessary to transfer to the husband all her entitlement to re-imbursement by the 2nd to 7th respondents as co-guarantors of a NAB security entered into by all the parties to this proceeding.
(3)Order that the husband indemnify the wife against any claim made by any of the guarantors of the subject NAB security arising from their relationship as co-guarantors.
(4)Forthwith upon the expiration of 50 days from the date hereof the husband sign and deliver to the wife all documents presented to him as may be necessary to transfer to the wife all his interest in the balance of proceeds from the sale of the former matrimonial home presently invested in an interest bearing deposit on behalf of the husband and wife.
(5)(Note: The delay in payment to the wife of the funds referred to in order 4 is to allow any cost application to be filed and determined there being no other apparent fund available to meet a costs order, if any, which may be made)
(6)The husband transfer to the wife all his title to the jointly held 405 IAG shares. The husband is to sign any document presented to him by the wife to affect that transfer.
(7)The husband is to transfer to the wife all his title to the 552 Telstra shares held in his name. The husband is to sign any document presented to him by the wife to affect that transfer.
(8)Superannuation Splitting Order. Pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) the husband and wife as trustees of the Laskari Family Superannuation Trust do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to the husband from his interest in the Laskari Family Superannuation Trust 84.5 per cent of the splittable payment of the husband be credited to the wife and that there be a corresponding reduction of the entitlement the husband.
(9)The husband and wife be at liberty, provided same is within the power of the trustees of the Laskari Family Superannuation Trust to do so and complies with all Commonwealth legislation necessary to ensure the superannuation fund is a complying fund, transfer out of the fund the whole of the entitlement of the wife in the Laskari Family Superannuation Trust following the making of these orders. In the event of such event occurring the wife is to resign all offices held by her as a trustee of the fund.
(10)The trustees of the Laskari Family Superannuation Trust when making a split in the superannuation fund pursuant to these orders are to apply the 84.5 per cent split to each type of property or asset held by the trustee on behalf of the fund.
(11)Otherwise than as ordered herein each of the parties is declared the absolute owner, as against the other of the property both real and personal (including any superannuation entitlement) standing in their sole name or in their name with another person or entity.
(12)Each party has leave to relist the matter should it be necessary to seek further orders to enable the implementation of these orders.
(13)On or before 23 January 2015 each party file and serve any costs applicant, together with evidence and written submissions in support, they wish to pursue. Such applications to be listed for hearing before Justice Le Poer Trench on 9 February 2015 at 10.00 a.m.
(14)All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Laskari & Laskari and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 450 of 2010
Ms Laskari Applicant
And
Mr Laskari and Ors First Respondent
And
K Pty Limited
Second RespondentU Pty Limited
Third RespondentMr N Laskari
Fourth RespondentMrs S Laskari
Fifth RespondentMr G Laskari
Sixth RespondentMs X
Seventh RespondentREASONS FOR JUDGMENT
Introduction
1.The applicant, Ms Laskari (“the wife”), and the first respondent, Mr Laskari (“the husband”), were married in 1989.
2.The husband and wife have two daughters, S aged 19 and N aged 17 (“the children”). Both the husband and the wife come from families which have Greek or Cypriote backgrounds.
3.The wife in her application for final property orders seeks orders against the husband under s 79 of the Family Law Act 1979 (Cth) (“the Act”) and orders against third parties under s 90AE of the Act. Those third parties are joined as the 2nd to 7th respondents. They include two companies and individual members of the husband’s family, namely:
·K Pty Limited (“K”), the 2nd respondent;
·U Pty Limited (“U”), the 3rd respondent;
·the husband’s father, Mr N Laskari (“Mr N”), the 4th respondent;
·the husband’s mother, Mrs S Laskari (“Mrs S”), the 5th respondent;
·the husband’s brother, Mr G Laskari (“Mr G”), the 6th respondent; and
·the husband’s sister-in-law, Ms X (“Ms X”), the 7th respondent.
4.The 4th to the 7th respondents are co-guarantors with the husband and wife of the liability of K Pty. Ltd. and U Pty Ltd.
5.The case has been managed by me in the lead up to the hearing. When the matter was first before me the husband was represented by Mr Domanis, his solicitor. For some time prior to the hearing the husband was self represented. The wife has at all times before me been legally represented. The same is true of the 2nd to 7th respondents.
6.It has become clear in the hearing that the wife has not prepared her case to a point where she can prove some of the facts that are necessary in order to establish her case. No satisfactory explanation for that circumstance has been placed before the Court nor has there been any application for an adjournment.
7.An example of this inadequate preparation was illustrated on the last day of a ten day trial. The wife sought on that day to be granted leave to rely upon an adversarial expert witness whose evidence addressed the value of property the husband has an interest in R in Greece. I refused the wife’s application in respect of that issue and set out hereafter the reasons for that refusal.
8.In 1962 the husband was born in Africa. He is now 52 years old.
9.In 1968 the wife was born in Australia. She is now 46 years old.
10.In the early 1970s, Mr N Laskari (“the husband’s father”; the 4th Respondent) and Mrs S Laskari (“the husband’s mother”; the 5th Respondent) acquired a parcel of land in Suburb Z, a suburb of City YZ (“the City YZ property”). The husband’s parents later subdivided the City YZ property into two plots and built a block of 12 apartments on one of those plots.
11.In 1983, the husband’s mother and father bought a plot of rural land in R in Greece (“the R land”), on which a residence was later built (“the R house”).
12.In 1984, the husband moved to Australia with his mother and his two brothers, Mr G Laskari (“Mr G”; the 6th Respondent) and Mr O Laskari (“Mr O”). The husband and Mr G assert that their mother brought with her an gemstone. A few months later, the husband’s father moved to Australia. The family lived together at a property owned by the husband’s parents in BU Street, Suburb WH (“the Suburb WH property”).
13.In December 1984, U Pty Limited (“U”; the 3rd Respondent) was incorporated. U began operating through business premises located in the Sydney CBD. The husband became an employee of U.
14.In March 1985, U bought a business which traded as “Q Retail” from premises in Sydney CBD. The husband and Mr G began working for Q Retail that year.
15.In late 1985 the husband and the wife met.
16.In 1987, the husband attended the Greek Consulate in Sydney and signed a Power of Attorney in favour of his parents. The husband asserts that he cannot recall being given a reason for signing the Power of Attorney, but that his parents “would have asked [him] for it” and that he “had no reason to question them”.
17.In March 1988, the husband’s parents gifted to the husband, Mr G and Mr O the R land and the R house in equal one-third shares, without their knowledge, by way of a “Parental Grant of Bare Ownership”. The husband’s parents retained a life estate in the property, meaning that the husband and his brothers would only become entitled to their share upon their parents’ deaths. The husband and Mr G each assert they did not become aware of their interests in the R land and the R house until October 2010.
18.In April 1989, the husband and wife bought a property in Y Street, Suburb M (“the Suburb M property”) for $270,000 as joint tenants. The purchase was funded by way of a gift of $50,000 from the wife’s parents, a gift of $40,000 from the husband’s parents and a loan from Westpac Bank in the sum of $191,000.
19.In 1989, the husband and wife married and commenced cohabitation at the Suburb M property. At the time, the husband was employed by U as an artisan and salesperson. The wife was employed in the travel industry and she also assisted with the bookwork for U.
20.In October 1990, K Pty Limited (“K”; the 2nd Respondent) was incorporated.
21.In late 1990, the wife’s father, Mr CC (“Mr CC”), lent the husband a sum of money. The circumstances surrounding this loan, including the quantum, and whether it has been repaid are not agreed between the parties.
22.In 1994, the husband and wife sold the Suburb M property and bought a property in DP Street, Suburb C (“the Suburb C property”).
23.In 1995, the husband’s parents gifted to the husband an apartment in City YZ, Greece (“the City YZ apartment”).
24.In 1995, the husband and wife’s eldest child, Ms S (“Ms S”), was born. She is now 19 years old. Their youngest child, N (“N”), was born in 1997. N is now 17 years old.
25.In 1996 the husband and wife travelled to Greece. While on this trip a boat was purchased. That purchase is the subject of dispute.
26.In October 1997, the husband and wife sold the Suburb C property and started to live with the wife’s parents in Suburb EE. They lived with the wife’s parents for around two years and, thereafter, began renting accommodation.
27.In June 1999, the husband and wife bought a property in J Street, Suburb B (“the former matrimonial home”) for $1.6 million. The purchase was funded by way of a loan (now a gift) from the husband’s parents in the sum of $100,000 and a mortgage to GIO in the sum of $1.1 million (which was subsequently transferred to the National Australia Bank). The former matrimonial home was initially leased, while the husband and wife continued to live in rented premises. They moved into the former matrimonial home in around mid-2000.
28.In December 2004, the husband and Mr G were made directors of U and they were each issued with one ordinary share. The husband was also issued with a “G” class share and Mr G was issued with an “H” class share. There is no evidence to suggest the husband paid for his share.
29.In 2005, the City YZ apartment was sold for EUR 240,000. The funds were deposited into an account with the National Bank of Greece. In around 2010 the funds were transferred to Australia and divided between the husband and wife, who each received approximately $137,180.
30.On 18 July 2007, at a meeting of the directors of U, a resolution was passed to establish a unit trust. The following day, it was resolved that additional units in the Laskari Family Property Trust would be issued to the husband, the wife, Mr G and Ms X (“the unit holders”).
31.On 20 July 2007, contracts were exchanged for the purchase of a property at D Street, Suburb E (“the D Street property”) for $4.95 million by U as Trustee for the Laskari Family Property Trust. A five per cent deposit of $247,500 was paid. One week later, K was appointed as Trustee of the Laskari Family Property Trust.
32.Following the exchange of contracts for the D Street property, U applied to the NAB for a loan to complete the purchase, in addition to a further loan of $850,000 for the refurbishment and “fit out” of the premises. The bank would not approve the loan applications without the unit holders of the Laskari Family Property Trust providing security in the form of real property.
33.The wife asserts that she and the husband separated under the same roof in October 2007. The husband denies this and contends that they did not separate until April 2009.
34.In June/July 2008, a loan in the sum of $4,965,000 was approved by the NAB for the purchase of the D Street property. The loan was secured by:
a)a mortgage over the former matrimonial home;
b)a mortgage over a property in Suburb DD owned by Mr G and Ms X;
c)a guarantee and indemnity by K as Trustee of the Laskari Family Property Trust, together with U and the husband’s parents;
d)a mortgage over a property in Suburb B owned by the husband’s parents;
e)a mortgage over the D Street property; and
f)a fixed and floating charge over the assets of K and U.
g)Personal guarantees by the husband, wife, Mr G, Ms X and the husband’s parents.
35.On 25 April 2009, the husband left the former matrimonial home. This is the date which he says final separation occurred. Following their separation, the husband commenced paying to the wife $500 per week by way of spouse maintenance, along with school fees for S and N and mortgage repayments and outgoings for the former matrimonial home, where the wife continued to live.
36.In January 2010, the wife started these proceedings by filing an Initiating Application by which she sought, inter alia, orders to the following effect:
a)that the husband transfer to her his interest in the former matrimonial home;
b)that the husband discharge the mortgage against the former matrimonial home;
c)that the husband pay to her $1,500 per week by way of spouse maintenance; and
d)that the wife, in return for the above, transfer to the husband all units held by her in the Laskari Family Property Trust.
The wife has since filed amended and further amended initiating applications by which she has sought orders that the husband and the Laskari Group procure her discharge from and indemnify her against any liabilities to the NAB. A minute of final orders sought by the wife was tendered at the hearing and marked exhibit W2. This was subsequently amended further.
37.The wife asserts that in March 2010, the husband attended the former matrimonial home and removed various items of jewellery belonging to her.
38.In May 2010, interim property orders were made. The husband and wife each received approximately $137,000 of the funds which had been transferred to Australia from Greece. In addition, the husband was ordered to pay:
a)$500 per week to the wife by way of spouse maintenance;
b)mortgage repayments regarding the former matrimonial home;
c)expenses in relation to the wife’s use of a German motor vehicle; and
d)all rates, utilities and insurance for the former matrimonial home.
39.In September 2010, the parties were divorced.
40.In October 2010, further orders were made with the effect that the wife rather than the husband was required to pay the mortgage repayment due that month. The previous orders of the Court otherwise remained unchanged.
41.In November 2010, further orders were made with the effect that U (as the husband’s employer and prior to it having been joined as a party) was ordered to garnish the husband’s salary to pay funds to the wife in accordance with the May 2010 orders.
42.In February 2011, further orders were made with the effect that:
a)upon the NAB issuing a Section 57(2)(b) Notice, the former matrimonial home was to be sold; and
b)the husband was to continue to pay the mortgage repayments and other outgoings for the former matrimonial home.
43.In September 2011, the wife sent a letter to the Financial Services Ombudsman alleging that NAB employees had received gifts “in appreciation for services outside of normal guidelines.” The wife also sent a letter to the NAB.
44.In July 2012, the husband filed a Response to the wife’s Initiating Application by which he sought, inter alia, orders to the following effect:
a)that the former matrimonial home be sold and the mortgage to the NAB be discharged;
b)that the parties’ net assets be distributed in the proportions of 50 per cent to the husband and 50 per cent to the wife (based on a contribution finding of 55 per cent to the husband and an adjustment of five per cent in the wife’s favour); and
c)that a superannuation splitting order be made such that a base amount of $470,618 be allocated to the wife from the Laskari Family Superannuation Fund.
The husband has since filed an updated Minute of Orders.
45.The final hearing was conducted over ten days, commencing on 18 February 2013 and concluding on 12 April 2014. There was then a period of time when the parties were to provide written submissions. The last of the submissions was to be served by 7 May 2014 and was received by the court on 8 May 2014.
46.On 22 April 2013 the former matrimonial home was sold for $3,350,000. The net proceeds of sale totalled $1,873,280.10 (see exhibit W20) following payment of outgoings and discharge of the mortgage to the NAB. The NAB retained all the balance of the sale proceeds and on 1 August 2013 advised the parties they had applied $889,380.26 to the outstanding liability of K Pty. Ltd. (see exhibit W21)
47.The husband submits that the NAB deducted a further $850,000 from the sale proceeds “being the monies owed by the parties as co-guarantors of the fit-out for the [D Street] premises”.
48.On 14 February 2014 the hearing was reopened and a document titled “Statement of Facts” was tendered as exhibit X5.
49.The contents of exhibit X5 were admitted without objection to most of the document however paragraphs 13, 14 and 15 were objected to as evidence. Those paragraphs were in the nature of submissions by the wife and were not received as part of the exhibit.
50.The content of exhibit X5 is as follows:
[LASKARI]
STATEMENT OF FACTS
Re: PAYMENT OF DEBT TO THE NATIONAL AUSTRALIA BANK1. In relation to the liabilities of [U] Pty Ltd to National Australia Bank the following amounts have been paid with respect to the following facilities:
a.Business Option instalment loan $68,969.19
b.Line of credit $225,932.13
c.Business option instalment loan $339,355.97
d.Business plus loan $701,264.96
e.Market rate facility $401,513.25
2. In relation to each facility the obligations of [U] have been guaranteed by the husband, the wife, [Mr N], [Mrs S], [Mr G], [Ms X] and [K Pty Ltd] (as trustee for the [Laskari] Property Trust).
3. The amounts paid in respect of facilities (a) and (b) above were paid by [Mr G] and [Ms X Laskari] from the [PM Street] sale proceeds. The facilities in (c), (d) and (e) above were paid by [Mr N] and [Mrs S Laskari] from the P Street sale proceeds.
4. In relation to K Pty Ltd as trustee of the Laskari Family Property Trust the following amounts have been paid with respect to the following facilities with National Australia Bank Pty Ltd:
Cheque account facility $33,585.02
Fitout facility $855,795.24
5. Each of the above facilities is guaranteed by the husband, the wife, [Mr N], [Mrs S], [Mr G], [Ms X] and [U] Pty Ltd.
6. The facilities in paragraph 4 were paid by the husband and the wife.
7.The property known as [D Street, Suburb E] NSW … (“the [D Street property]”) was sold by [K Pty Ltd] ATF [Laskari Family Property Trust] on 26 September 2013 for the price of $4,600,000.00 to [GL] Pty Ltd.
8.The deposit received from the purchasers in the sum of $460,000.00 was placed into an interest bearing Controlled Monies Account by Carney Lawyers (on behalf of the vendors).
9.The sale of the [D Street] property was settled on 7 November 2013. At the time of settlement the purchaser paid a balance of the sale price in the sum of $4,150,060.48. The deposit funds in the sum of $460,000.00 had accrued (through interest) into the sum of $460,499.14.
10.The total funds procured by the vendors through the sale of the [D Street] property totalled $4,610, 559.62 and said proceeds were disbursed as follows:
$9,929.99 City of Sydney council rates
$ 95.77 Sydney Water rates
$320,252.44 Outstanding strata levies to Owners Corp …
$14,714.84 Legal fees for Carney Lawyers for the “sale” file$2,362.25Legal fees for Carney Lawyers for the “dispute with Owners Corp …” file
$249.57Vendor’s share of the interest earned in the Controlled Monies Account
$249.57Purchaser’s share of the interest earned in the Controlled Monies Account
$4,262,705.19 Funds paid to the NAB in respect to the Bill Account (…) in the name of [Mr G], [Ms X], the husband and the wife.
11.On the same date as the settlement of the sale of the [D Street] Property the NAB applied $720,903.44 from the term deposit … in reduction of the balance of monies owed by [Mr G], [Ms X], the husband and the wife for Bill Account (…) in the amount of $702,294.81 and in respect to alleged “legal costs owing to the NAB by the wife in respect to these proceedings in the amount of $18,608.63”.
12.The NAB received in total the sum of $4,983,608.63 relating to the sale of the [D Street] property and the latest withdrawal from the term deposit of the husband and wife:
a.$9,965,000.00 for the discharge of the NAB Bill line facility in favour of [Mr G], [Ms X], the husband and the wife
b.$18,608.63 relating to the legal costs incurred by NAB in being “temporarily” joined to these Family court Proceedings
13.Not relevant
14.Not relevant
15.Not relevant
16.The NAB Bill line facility in favour of [Mr G], [Ms X], the husband and the wife has been paid in the amount of $749,032.70, comprising the amount of $702,294.81 paid by the husband and the wife and the amount of $46,735.89 paid by [Mr N] and [Mrs S Laskari].
17.The last remaining debt owing by the “[Laskari Group]” to the NAB was the Trade Finance Facility for [U Pty Ltd] and it was paid out by funds from [Mr N] and [Mrs S Laskari] in the sum of $184,809.48.
18.A summary of the payments to NAB secured debt and the source of each payment is set out below:
Payments to NAB Secured Liabilities $ Paragraph in Mr G Laskari affidavit sworn 14.02.2013 From PM Street Sale Proceeds (paid by [Mr G] and [Ms X Laskari]) [U] Business Options Instalment Loan 68,969.19 25.1 [U] NAB Line of Credit 225,932.13 25.11 From [P Street] Property Sale Proceeds (paid by [Mr N] and [Mrs S Laskari]) NAB Business Plus 701,264.96 36.1 Market Rate Facility 400,000.00 36.2 Interest Account on Market Rate Facility 1,513.25 36.3 Business Option Instalment Loan 339,355.97 36.4 Outstanding Arrears to NAB in relation to the Bill Line Facility ([D Street]) 46,735.89 37 [U] Trade Finance Facility 184,809.48 From Sale of 13 J Street, Suburb B (paid by Mr and Ms Laskari) [K] Cheque Account 33,585.02 Bill Line Facility Shortfall 702,294.81 [K] Fitout Account 855,795.24 From sale of [D Street] property (proceeds of sale) Bill Line Facility 4,262,705.19 Total 7,822,961.13 Total Secured Payments Divided by Payer Payments from proceeds of sale of [D Street] Property 4,262,705.19 Payments by [Mr N] and [Mrs S Laskari] 1,673,679.55 Payments By [Mr G] and Ms X Laskari 294,901.32 Payments by Mr and Ms Laskari 1,591,675.07 The Orders Sought
51.The wife seeks the following orders as set out in a document titled “Minute of Order – Applicant Wife” which was marked Exhibit W19 tendered 14 February 2014:
1.That pursuant to Section 90AE(2) of the Family Law Act 1975 the Court orders the Second to Seventh Respondents to do all acts and sign all documents necessary to comply with the orders appearing below and alters the rights, liabilities and property interests of those parties to the extent required for these orders to be put into effect.
2.That within forty two (42) days of the date of the making of these orders the First to Seventh Respondents pay all moneys, do all acts and things necessary and sign all instruments, documents and writings required to procure the release of the Wife (whether by way of discharge or otherwise) from any liability to the National Australia Bank Limited (“the NAB”) in respect of any mortgage, loan, charge, guarantee or otherwise arising in respect of the [Laskari] Family Property Trust (“the Property Trust”) and/or [K] Pty. Limited and/or [U] Pty. Limited.
3.Simultaneously with the compliance by the First to Seventh Respondents with Order 2 the Wife shall do all acts and things and sign all documents necessary to transfer to the First Respondent Husband all her right title and interest in her units in the Property Trust.
4.That the Husband and the Wife shall do all acts and things and sign all documents necessary to sell the former matrimonial home at [J Street, Suburb B] as soon as practicable at the best price reasonable obtainable and unless the parties agree otherwise in writing then in accordance with the provisions of Order 7 as if all references to the [D Street] property were to the former matrimonial home.
5.That following the settlement of the sale of the former matrimonial home the proceeds of sale shall be paid out in the following manner and priority:
5.1Payment of agent’s commission and auction expenses, if any, due on the sale of the property;
5.2Payment of adjustment of rates;
5.3Payment of legal costs on the sale of the property;
5.4Discharge of the acquisition debts comprising NAB home loan accounts number … and flexi plus mortgage account number ...
5.5The balance is declared to be the property of the Wife as against the Respondents.
6.Should any of the following occur:
6.1default of compliance by the First to Seventh Respondents with their obligations pursuant to Order 2; and
6.2the NAB applies the balance of the funds from the sale of the former matrimonial home (the funds outlined in order 5.5 above) towards payment of the [K] Pty Ltd and [U] Pty Ltd debts with the NAB;
the Wife’s obligations under Order 3 are discharged and the following orders shall apply.
Sale of [D Street] property and [L] Business to procure release of encumbrances against the former matrimonial home
7.That [Ms Laskari], [Mr Laskari], [Mr G Laskari] and [Ms X Laskari] as unit holders in the Property Trust do all acts and things and sign all documents necessary to terminate that Trust and to authorise [K] Pty Limited as trustee of the Trust to cause a sale of the property known as [D Street, Suburb E] (“the [D Street] property”) for the best price reasonably obtainable in such manner as may be agreed between the said parties and in default of agreement:
7.1Do all acts and things necessary to forthwith place the [D Street] property on the market for sale by public auction and in particular:
7.1.1Place the property with an agent appointed by the NSW Division of the Australian Property Institute (hereinafter “the auctioneer”) for the sale by auction at the earliest possible date;
7.1.2Execute all documents requested by the auctioneer for the sale of the [D Street] property by auction;
7.1.3Place the [D Street] property for sale at a reserve price agreed between the unit holders or in default of their agreement seven (7) days prior to the sate set for auction at the price recommended by the auctioneer;
7.1.4Pay to the auctioneer any sum requested for advertising expenses in relation to the auction;
7.1.5Give such instructions as are necessary for the preparation of a contract for sale and for the contract for sale to be made available to the auctioneer prior to the auction;
7.1.6Co-operate in every way with the auctioneer in relation to the auction of the [D Street] property including making the property available and allowing inspection of the property at times requested by the auctioneer and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;
7.1.7Attend at the auction sale of the [D Street] property and negotiate with the highest bidder in the event that the reserve price is not reached;
7.1.8Execute the contract for sale;
7.1.9Execute all other documents necessary to complete the sale.
8.In the event that the [D Street] property is not sold:
8.1At an auction pursuant to Order 7 hereof; or
8.2Within seven (7) days of the date of such auction by negotiation with the highest bidder at such auction;
[K] Pty. Limited as trustee of the Property Trust do all acts and things and execute all documents necessary to cause to be held a further auction of the [D Street] property within three (3) months after the date of the first auction and that the terms of Order 7 shall apply in relation to such further auction.
9.Upon completion of the sale of the [D Street] property, [K] Pty. Limited shall do all acts and things necessary to procure the payment of the proceeds of sale pursuant to clause 13 of the Trust Deed of the Property Trust including:
9.1Payment of agent’s commission and auction expenses, if any, due on the sale of the [D Street] property;
9.2Payment of adjustment of rates;
9.3Payment of legal costs on the sale of the property;
9.4Payment of the amounts outstanding to the NAB pursuant to the following facilities (together referred to as “the Property Trust bank debts”):
9.4.1 The Bill Line Facility (K);
9.4.2 The Fit Out Facility (K);
9.4.3 [U] Trade Facility.
9.5Payment to the Applicant Wife of a sum equalling the proceeds that were available after the sale of the former matrimonial home (as per order 5.5 above); and
9.6The net balance to be paid into [K] Pty Ltd.
10.Simultaneously with the payment in Order 9.5 the Wife shall do all acts and things and sign all documents necessary to transfer to the First Respondent Husband all her right title and interest in her units in the Property Trust.
11.That within twenty eight (28) days of settlement of the sale of the [D Street] property in accordance with these orders, the First to Seventh Respondents do all acts and things necessary and sign all instruments, documents and writings required to procure the release of the Wife and the funds referred to in Order 5.5 from any encumbrance to the NAB and in default of compliance with this order, the following orders shall apply.
12.That [U] Pty. Limited shall do all acts and things necessary to forthwith place the business trading as [L Business] on the market for sale by private treaty at a fair market price determined by a registered valuer appointed by the President of the NSW Division of the Australian Property Institute.
13.That U Pty. Limited trading as [L Business] shall apply to the President of the NSW Division of the Australian Property Institute, who will make the appointment of an agent and such agent shall be appointed to conduct the sale of the business pursuant to these orders.
14.That [U] Pty. Limited trading as [L Business] shall do all acts and things and execute all documents necessary for the sale of the business by private treaty.
15.Upon completion of the sale of the business, [U] Pty. Limited trading as [L Business] shall do all acts and things necessary to procure the payment of the proceeds of sale in the following manner and priority:
15.1Payment of agent’s commission and auction expenses, if any, due on the sale of the business;
15.2Payment of legal costs on the sale of the business;
15.3Payment of any amount still outstanding to the Applicant Wife in respect to the funds she was to obtain in order 5.5 and 9.5 above);
15.4The net balance to be retained by [U] Pty. Limited and dealt with in accordance with the Memorandum and Articles of Association of the said company.
16.That within twenty eight (28) days of settlement of the sale of [L Business] by [U] Pty. Limited in accordance with these orders, the First to Seventh Respondents do all acts and things necessary and sign all instruments, documents and writings required to procure the release of the Wife and the funds referred to in Order 5.5 from any encumbrance by the NAB.
17.Pending completion of the sale of the former matrimonial home the Husband shall do all acts and things necessary to pay or procure the payment of all outgoings in relation to the home including all mortgage instalments, rates, taxes, utilities and insurances.
18.Any arrears, interest or charges payable in respect of the Property Trust bank debts and the [U] Pty. Limited bank debts payable at the discharge of the said liabilities shall be paid as to 50 per cent of those amounts by way of refund by the Husband to the Wife within twenty eight (28) days of the discharge of those liabilities.
19.Irrespective of the level of compliance with these orders on the part of each and all of the respondents to this application, each of the First to Seventh Respondents shall indemnify the Wife against all claims, actions, suits and demands which may be hereafter instituted against the Wife by the NAB concerning any of the debts referred to in Orders 9.4 and 14.3 above.
20.The Husband and [U] Pty. Limited shall indemnify the Wife against all claims, actions, suits and demands which may be hereafter be made against her for income or capital gains tax in consequence of any record or claim made in taxation returns submitted by [U] Pty. Limited concerning salary or other payments made or benefits provided to her by that company.
21.[K] Pty. Limited shall indemnify the Wife against all claims, actions, suits and demands which may be hereafter be brought against her for income or capital gains tax in consequence of any record or claim made in taxation returns submitted by [K] Pty. Limited concerning distributions of income or capital or benefits provided to her by that company in its capacity as trustee of the Property Trust or otherwise.
22.Each of the Husband and the Wife shall forthwith in their capacities as the trustee of the [Laskari] Superannuation Fund shall do all acts and things and execute all documents necessary to roll the allocated member benefit of the Wife in that fund as valued by [Ms F] of TT Firm ($29,808) into a complying fund to be nominated by the Wife.
23.The Wife shall forthwith thereafter resign as a trustee of the [Laskari] Superannuation Fund.
24.The Husband shall indemnify the Wife against all claims, actions, suits and demands which may be hereafter be made or instituted concerning the administration of that fund.
25.Except as these orders otherwise provide to the contrary, each party is declared as against the other parties the sole legal and beneficial owner of all property in that party’s respective name, ownership, possession or control.
26.That in the event that any party refuses or neglects to execute any deed or instrument in order to give validity and operation to these orders, then a Registrar of this Court is hereby empowered pursuant to Section 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.
27.That the Husband pay the Wife’s costs of an incidental to these proceedings on an indemnity basis.
52.In his written submissions filed 14 August 2013, the husband sought the following orders:
C. The Orders sought by the Husband
1. Pursuant to Section 79(4) of the Family Law Act, there be an adjustment of the parties’ interest in the pool of assets:
1.155 per cent to the Husband and 45 per cent to the Wife by way of a contribution entitlement.
1.25 per cent adjustment of the Wife pursuant to Section 75(2) of the Family Law Act.
2.2.1 Payment to the husband of an amount equivalent to 50 per cent of the net assets of the parties (with the net asset pool to be calculated in accordance with an agreed Balance Sheet by the parties, and taking into account each of the assets and liabilities the parties shall retain in accordance with these Orders).
2.2The balance remaining to the Wife.
3.Superannuation Interests:
3.1The base amount of $70,618 is allocated to the Wife out of the Husband’s superannuation entitlement in the [Laskari] Family Superannuation Fund (“the Superannuation Fund”).
3.2Pursuant to Section 90MT1(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid by the trustee of the Superannuation Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in Order 14.1 from the splittable payment and that there shall be a corresponding reduction to the entitlement of the Husband would have had in the Superannuation Fund but for this Order.
3.3Pursuant to Section 90MZD of the Family Law Act, this Order binds the trustee of the Superannuation Fund.
3.4The operative time is four business days after service of these Orders on the Trustee of the Superannuation Fund.
4. A Short Minute of Orders to be filed upon agreement between the parties as to the Balance Sheet.
53.The 2nd to 7th Respondents seek the following orders:
1.A declaration that the applicant and the first respondent are jointly and severally liable to the fourth and fifth respondents for contribution as co-guarantors in the amounts of $412,038.34, $23,367.95 and $52,802.71.
2.A declaration that the applicant and the first respondent are liable to the sixth and seventh respondents for contribution as co-guarantors in the amount of $84,257.52.
3.An order that such amounts may be set off against any amounts owing by the fourth, fifth, sixth, and seventh respondents to the applicant and the first respondent pursuant to any liability they may have for contribution as co-guarantors, or for contribution or indemnity as co-borrower.
4.Such further or other order as to the Court seems fit.
5.That the Application of the Wife for orders against the second to seventh respondents as set out in her Minute of Order be dismissed.
6.An order that the applicant pay the second to seventh respondents’ costs of these proceedings on an indemnity basis.
The Issues
54.The following fact issues were identified at the commencement of the hearing:
·the date on which the husband and wife separated;
·the loan from the wife’s father to the husband, whether it was $87,000 or $70,000 and how much was repaid;
·the value of and circumstances surround the sale by the husband and Mr G to U Pty Ltd of “the gemstone” said to have been brought to Australia from [Africa] by the husband’s mother and given to the husband and Mr G;
·the wife’s assertion that the husband stole items of jewellery belonging to her following their separation;
·the value of property in R, Greece, in which the husband is said to have been gifted a one-third share and in which property the husband’s parents are life tenants;
·The liability of the 2nd to 7th respondents, if any, to the husband and wife arising out of their joint enterprises and the application by the NAB of the sale proceeds of the former matrimonial home to meet debt of all the parties.
·issues arising from the balance sheet;
·the extent to which the wife worked for the Laskari family businesses and how much she was paid for that work;
The Evidence
Documents
The wife
55.The wife relied on the following affidavits at the hearing:
a)Affidavit of the wife sworn on 12 June 2012;
b)Affidavit of the wife sworn 20 September 2012;
c)Affidavit of Mr CC sworn on 5 June 2012;
d)Affidavit of Ms V sworn on 23 February 2011; and
e)Affidavit of Mr W sworn on 23 February 2011. This affidavit was withdrawn during the hearing.
56.The wife’s affidavit is sworn on 12 June 2012, in which she set out the following.
57.The parties commenced cohabitation at the date of marriage in 1989. At the time they commenced cohabitation, the wife had one asset of significance, being a motor vehicle worth $24,000. The car was a gift from her father and did not have a debt attached to it. The parties sold the car soon after they commenced cohabitation and applied the funds to the family.
58.The wife says she had no superannuation at the date of commencement of cohabitation.
59.The wife says that the husband had no assets of significance nor superannuation at the date of commencement of cohabitation.
60.In relation to contributions made during the cohabitation, the wife stated the following.
61.The parties jointly purchased a property at Y Street, Suburb M in 1989 for $270,000, shortly before their marriage. The wife says the purchase was funded by gifts of $50,000 from her parents and $40,000 from the husband’s parents, as well as a mortgage secured against the property for the balance. The wife said that her father later lent the parties a further $87,000 to reduce the loan, however, the wife said that she did not know how the husband used that money.
62.At the time the parties commenced cohabiting, the wife worked in the travel industry. She ceased working there soon after cohabitation commenced. She said this was due to the husband’s objection to the hours she worked. She did not work outside the home again until 1992. She was employed on a full-time basis between 1992 and 1995, before leaving employment after the birth of the first child. She then worked on a part-time basis in 1999 for a period of 18 months. She worked on a part-time basis between 2007 and 2008.
63.In April 2011, the wife completed a course in order to increase her skills and her employability. The wife stated that she discussed the possibility of undertaking further training throughout the cohabitation, however, the husband said that he could not undertake to be home to look after the children while the wife attended night classes.
64.In April 2012, the wife took up casual administrative work, as her applications for full-time administrative roles were unsuccessful. She said that her hours and income are irregular.
65.The wife states that throughout the marriage, she applied the whole of her income to the family.
66.In relation to non-financial contributions, the wife states that following the sale of the parties’ then matrimonial home in Suburb C in 1997, the parties lived in the wife’s parents’ home with them for a period of two years. During that time, they did not pay rent, and the maternal grandparents provided groceries for the parties. The parties moved out of the maternal grandparents’ home in 1999.
67.In relation to her contribution as a home-maker and parent, the wife set out the following.
68.The parties have two children, born in 1995 and 1997. The wife has been the primary care-giver to the children. She says that she dropped off and collected the children from school most days, took the children to extra-curricular activities, and attended school functions. When the children were young, she says that she fed, bathed and clothed the children as well at attended to them when they were ill. She says that the husband did not take any time off work when the children were born and that he continued to work long hours at the business.
69.During the marriage, the wife says that the husband worked long hours. He attended work from 9.00 a.m. to 8.00 p.m. each day, and would return home later when there was late night shopping, night functions, and during holiday periods. She says he worked most Saturdays. She said that he would spend time with the children on Sundays, but that the time he spent with them throughout the week was minimal due to his work commitments.
70.The wife said that she undertook almost all of the homemaking duties during the marriage. She undertook the laundry, cooking all meals, the cleaning (with the help of a cleaner from about 1998) and occasionally some of the outside maintenance work (undertaken by a gardener from about 2001).
71.In relation to contributions made post-separation, the wife set out the following.
72.The wife remained living in the former matrimonial home in Suburb B following separation. The children have resided with the wife in the former matrimonial home for the majority of time since separation.
73.The wife obtained casual employment in April 2012, and said that she applied the whole of her income to the maintenance of the household and supporting the children.
74.In relation to s 75(2), the wife set out the following.
75.The wife says that she does not feel confident that she will obtain full-time employment without some re-training. She was not employed for the majority of the cohabitation, and her training in the field in which she was employed is out of date. She also says that the children will remain living with her, and she will remain responsible for their day to day care.
76.In relation to the date of separation, the wife said that the parties separated in October 2007. This occurred when the wife withdrew from the marriage following an assault by the husband where he poured water on her head in front of friends. The wife was humiliated and told the husband the marriage was finished. The next day the husband moved out of the house. He returned at Christmas time and stayed until April 2009 against the requests and protestations of the wife. There was an incident where the wife said the husband pushed her. She rang 000. During the period from Christmas 2007 to April 2009 the wife did not perform any domestic services for the husband. They slept in separate rooms. The wife did accompany the husband to social functions.
77.The wife said the parties remained discreet for the children. She told some friends they were separated.
78.In relation to the wife’s involvement in the Laskari business, the wife said she attended many work based functions with the husband. Prior to the birth of the children this happened weekly. After the children were born the wife could not accompany the husband to functions with the same regularity.
79.The wife said that between 1989 and 2007, she worked in the business “as required”. She worked as a fill-in salesperson in the shop as needed, and also undertook administrative work. She worked on a full-time basis at another business owned by the Laskari family in the early 1990s for six to twelve months, and later at another business on a part-time basis for six to twelve months.
80.In relation to the Greek properties, the wife set out the following.
81.The wife states that the husband did not disclose properties owned by him in Greece, being a one third share in two properties in R. The wife says that the paternal grandparents gave these properties equally to their children in 1988. The wife disputes the paternal grandmother’s assertion that the properties or any part thereof came to her as an inheritance. The wife says that the husband was aware that he had an interest in the properties, as he said to her words to that effect in 2002, when they were staying in the R house.
82.The wife stated that there were significant improvements made to the R house throughout the cohabitation. This included an ongoing construction from at least 1989 of a two-storey building with three apartments on the ground floor and a communal living area on the upper floor. The wife said that she does not know how much this construction cost. She recites a conversation with the husband’s mother in the late 1990s where the wife was told “Each of these retaining walls are costing $150,000.00”.
83.In relation to the husband taking funds and merchandise out of Australia, the wife states that the parties travelled to Greece on a number of occasions. She says that the husband would take under $10,000 in cash, and that she would take several pieces of expensive merchandise, which she said would be sold in Greece. She says that the husband purchased a speed boat in Greece in 1996, and that he told her that the $30,000 purchase was funded by a $110,000 sale which he had made.
84.In relation to the funds which were received from Mr G and Ms X Laskari from the sale of a property in Suburb DD, the wife says that she was not a party to that transaction. She says that the amount of $795,098 was meant to be applied to the mortgage of the former matrimonial home. That did not happen. The property was part security for the NAB loan to U Pty. Ltd. The wife says $300,000 of the sale funds were disbursed otherwise than to reduce bank debt. She did not give her consent for the release of some part of the collateral security provided as security for the NAB loan to the company.
85.In relation to the transaction between the husband’s parents and his brother Mr G and Mr G’s wife Ms X where the property at P Street, Suburb B was sold by the husband’s parents to Mr G and his wife, the wife was not a party and had not seem documents in relation to same. The wife says that the husband’s parents were paid $795,098 out of the sale proceeds of the property owned by Mr G and his wife at PM Street, Suburb DD.
86.The wife stated she is not privy to the U business, and so is not aware whether the business had any involvement in the sale of the PM Street, Suburb DD property or the P Street, Suburb B property.
87.In relation to the mortgage over the former matrimonial home, the wife said the following.
88.On 7 May 2010, Cohen J made orders in relation to the payment of the mortgage by the husband. The wife says that the husband paid the mortgage from May to November of that year, however, she says the bank records show the husband also drew down on the mortgage to the sum of $20,947.83. The wife said the husband’s affidavit sworn 24 July 2010 stated that his draw-downs were to cover living expenses for himself and the children. The wife says he did not pay the children’s school fees which fell into significant arrears.
89.Further orders were made on 27 October 2011, in which the husband was restrained from drawing income or funds from the company U Pty. Ltd. other than for the purpose of paying the mortgage secured against the husband and wife’s former matrimonial home. The wife claims the order was disobeyed by the husband. As at June 2012 the wife said the mortgage was in arrears for $68,000. She annexed a copy of the bank statement verifying that evidence.
90.On 4 November 2010 a garnishment order was made. The order was made against U Pty Ltd. The wife detailed the payments made by U Pty Ltd to the NAB mortgage account pursuant to the order. Between 5 November 2010 and 2 May 2011 $46,700 had been paid.
91.In relation to the gemstone which was said to have been given by the husband’s mother to the husband and his brother and was then said to have been sold for $400,000, the wife referred to this in her affidavit sworn 3 November 2011. The wife also annexed a copy of a minute of meeting of directors of U Pty. Ltd. held 1 July 2008. That minute records that the husband’s mother, Mrs S Laskari gifted to the husband and Mr G her gemstone necklace which was then sold by the husband and Mr G to U Pty Ltd for $400,000. The company was to repay the loan by paying off $200,000 of the mortgage for Mr G and $200,000 of the mortgage for the husband.
92.The wife alleges that in January 2010 she and the children were away from the former matrimonial home on holiday. While away she received a call from the security company which provided security to the property. She was told something which led her to understand the husband had entered the home.
93.The wife says that on a Wednesday in February 2010 the husband attended the former matrimonial home and removed boxes of items. She had not agreed to this. The wife says that she is not aware of the full extent of the property the husband removed from the former matrimonial home.
94.On 17 March 2010, the husband entered the former matrimonial home again, and the wife alleges that on this date, the husband removed a pouch containing jewellery. The wife states that her personal jewellery was stored in the safes at the business premises, as there were no safes in the former matrimonial home.
95.In relation to legal costs incurred, the wife says that she had no outstanding fees to Alexanders Lawyers, her current solicitors. She says that she owes approximately $61,000 to her previous solicitors Vizzone Ruggero. She also states that she paid $87,000 to another previous solicitor Karras Partners.
96.The wife relied on a second affidavit sworn 20 September 2012. She set out the following.
97.The wife outlines that K is currently the trustee of the Laskari Family Property Trust, which is a unit trust established on 18 July 2007.
98.Prior to its retirement as trustee on 26 July 2007, U was the trustee of the Laskari Family Property Trust. The husband, Mr G and their parents, Mr N and S, are equal shareholders in U.
99.The husband, Mr G, Mr N and S were also the original equal unit holders in the Laskari Family Property Trust. However, on 19 July 2007 it was resolved at a directors meeting of U that units in the Laskari Family Property Trust would be reissued so that the unit holders would be the wife, the husband, Mr G and Ms X. Consequently, they now each hold a 25 per cent share of the units.
100.In relation to the acquisition of the D Street property by the Laskari Family Property Trust, the wife deposes that in early- mid 2008, the husband told her a number of times that the former matrimonial home, Mr G’ house and his parents’ house would need to be used as security for a loan to purchase the D Street Property to which the wife replied “No, I’m not putting the house up”.
101.The wife deposes that in about mid-2008, the husband said words to the effect of “we need to put the house up or we’ll lose the deal” and “If we don’t do it we will lose everything. I don’t want my children to witness me going bankrupt”. Concerned by the husband’s comments, the wife agreed to use the former matrimonial home as security for the loan on the condition that she would obtain an interest in the D Street property. She says that she does not recall the husband’s response, if any, to this proposal.
102.The wife says that a few days after this conversation, she attended a solicitor’s office with the husband for the purpose of discussing the bank paperwork for the purchase of the D Street Property.
103.The wife became a co-borrower on a Commercial Bill Facility for $4,965,000 from the National Australia Bank (“NAB”) to fund the purchase of the D Street property (“NAB Commercial Bill Facility”). The other borrowers were the husband, Mr G and Ms X. The facility was partly secured by the former matrimonial home.
104.On 20 July 2007 it was resolved at a directors meeting of U that the Laskari Family Property Trust would exchange contracts for the purchase of the D Street property
105.At paragraphs 24-27 of her affidavit, the wife outlines that in addition to the NAB commercial bill facility used to fund the D Street property, she is also a guarantor of several other facilities provided by NAB to K and U. She outlines that not including the facilities related to the acquisition of the former matrimonial home, the facilities’ total in excess of $7,480,000, of which more than $1,666,000 is a business debt of U, in which the wife has no interest. She says that she is not privy to the business dealings of U and is therefore not aware of the use to which any of the U facilities are put. In excess of $5,800,000 of the NAB facilities is in respect of K. The wife’s position is that after the conclusion of the proceedings she will not retain any interest in K or the Laskari Family Property Trust.
106.The wife stated that the furnishing of the D Street property shortly after its purchase was funded by a $850,000 loan facility in the name of K.
107.The wife says that U traded as “L Business” out of the D Street property and paid rent to K.
108.In November 2011 the wife caused a notice of meeting and proposed resolution to be sent to the other directors and shareholders of K, being the husband, Mr G and Ms X. The notice proposed a resolution that K enter into a registered lease in respect of the D Street Property with U, trading as L Business, so that the property could be leased at a rent of $440,000 per annum. The proposed resolution also provided that upon the property being leased to U, the D Street property would be placed on the market for sale by way of auction offered with the existing tenancy. The notice of meeting outlined that selling the D Street property with an existing tenancy and the registered lease in place would increase the likelihood of a higher sale value being achieved.
641.I propose orders which will give effect to the following division.
642.The wife will receive the following assets and liabilities from the balance sheet :
Assets ($) · Jewellery 140,000 · Balance of proceeds of former matrimonial home 206,426 · IAG shares 2572 · Telstra Shares (Husband and Wife’s) 4,400 Total Assets $353,398
Liabilities · Nil Total Liabilities $NIL Net Assets $353,398 643. The husband will receive:
Assets ($) · Jewellery 14,350 · Record collection 8,800 · Boat in R 800 · 1/3 share of R property 247,680 · Funds owed by 2nd to 7th respondents to husband and wife 413,953 Total Assets (including superannuation) $685,583 Liabilities · Liability to U Pty Ltd 76,613 Net Assets (including superannuation) $608,970 644.The wife has a shortfall of $50,797. The husband has no readily realisable asset which could be liquidated and paid to the wife. Given the circumstances in which the Laskari Family Property Trust and U Pty Ltd currently stand I have no evidence as to the husband’s borrowing capacity. I suspect he would not have the capacity to raise any funds. I do not propose to cause him to sue the 2nd to 7th Respondents nor permit the wife to do so. If I framed orders which permitted the wife to sue the 2nd to 7th respondents then I am sure a considerable amount would be lost to her in legal costs, even if she received a cost order.
645.The remedy lies in a splitting order. The wife sought a splitting order. For the purpose of assessing the splitting order I will calculate the value of the superannuation fund at its’ lower value, namely $147,075. That will ensure as far as is able, that the wife is not disadvantaged by being incorrect in her valuation of the assets of the fund. She is already entitled to half that fund following my assessment of her contribution to superannuation. The husband’s share of the superannuation therefore is $73,538. If I move $50,797 of that entitlement to the wife the total of her entitlement will become $124,335. That sum then represents 84.5 per cent of the superannuation fund. I propose to make a splitting order in that sum.
646.The assets of the fund consist of shares and cash. Whenever the splitting order is affected it should be done on the basis of splitting 84.5 per cent of the shares held by the fund and the same percentage of the cash or any other asset at the time.
647.Having taken into account all of the above I conclude that the orders I propose will achieve a just and equitable division of the parties assets and superannuation.
648.The 2nd to 7th Respondents provided written submissions which provided a solution to the claims for indebtedness between all the parties to this litigation arising from their guarantee which they provided to the NAB as security for advances made to K Pty. Ltd. and U Pty Ltd. The outcome of the intricate accounting which the 2nd to 7th respondents provided is that the husband and wife are owed by their co-guarantors the sum of $413,953.
649.Having provided the submissions to enable that conclusion together with the detailed calculations the 2nd to 7th respondents then sought declarations which showed a liability from the husband and wife to those persons. No explanation for such order sought is found in the submission. The order sought appeared at odds with the submission made. I propose to make the declaration consistent with my findings as to the right to contribution by the co-guarantors as set out earlier in these reasons.
650.The orders I will make therefore will provide for a declaration as to the funds owed by the co-guarantors of the husband and wife owe the husband and wife. There will be provision of that asset then to be transferred to the husband and the husband to give the wife indemnities.
651.An order will be made for all the funds held on behalf of the parties following the sale of the former matrimonial home to be made available to the wife at the conclusion of 50 days from the date hereof.
652.The husband will transfer to the wife his shares in IAG and in Telstra.
653.There will be a splitting order in favour of the wife so that she receives 84.5 per cent of the superannuation fund.
Reason for refusal of wife’s application made 1 March 2013 to rely upon adversarial valuation evidence.
Application filed 1 March 2013
654.On the morning of the final day of the final hearing in 2013, the wife made an application to be granted leave to rely on valuation evidence from an adversarial witness in relation to the valuation of the R property. The husband and the 2nd to 7th respondents opposed this application.
655.Counsel for the wife submitted that the valuation “adds some material” to the single Expert report. He submitted that the adversarial expert report differed from that of the single expert Mr SR in the following aspects.
·The adversarial report stated that the vacant CS land was able to be built upon (it was conceded that the report does not deal with any government building permission);
·The marketability of the property was increasing;
·The building was 20 years old as opposed to 50 years old;
·The ultimate value of the husband’s share in the property was €434,000 as opposed to €172,000.
656.Counsel for the wife conceded:
·The report does not deal with any government building permission
657.Counsel for the 2nd to 7th Respondents submitted the following.
658.The court’s attention was drawn to the orders of 21 September 2012, which had included the following:
4. On or before 2 November 2012 the wife is to file and serve any application she seeks to make to be able to rely upon an adversarial expert’s evidence in relation to the valuation of agreed properties”.
659.It was submitted that the evidence in relation to why there was a delay by the wife in seeking an adversarial witness, as set out in the wife’s supporting affidavit, was inadequate. In particular, counsel said that the evidence in relation to the delay since December 2012 was inadequate. It was noted that the evidence states that the wife had an issue with financing an expert, however, counsel submitted that even when the wife’s parents offered to assist in January 2013, the wife did not contact the adversarial witness until 6 February 2013.
660.It was submitted in relation to Rule 15.49 of the Family Law Rules, which sets out the bases on which the court may allow evidence from a second witness on an issue where there is already a single expert, the three matters referred to in sub-Rule (2) may be addressed as follows:
·There is no substantial body of opinion;
·There is no information known by the adversarial expert that was not known by the single expert;
·There is no other special reason.
Accordingly, it is submitted that the rule does not apply in this instance and leave should not be given.
661.Counsel for the 2-7 respondents further submitted that the timing of the application was such that to accept it would prejudice his clients. It was submitted that they had only received a copy of the report that week and had no time seek an explanation of some of the issues raised in it. He submitted that if the application was allowed, then there would be the delay of an adjournment while the experts conferred, and the possibility of further hearing and cross-examination of the expert witnesses if they could not come to an agreement. Further there would need to be additional submissions from the parties. The 2nd to 7th respondents said the damage by way of prejudice to those parties had a real risk of being substantial.
662.Counsel for the husband adopted the submissions of the 2-7 respondents, however, wished to make further submissions as to the weight the Court could place on the evidence of the adversarial expert, were it to be accepted.
663.It was submitted by counsel for the husband that the purpose of allowing such evidence would be to provide a substantial contrary body of expertise, however, this document did not do that. It was submitted that there was no criticism of the methodology which the single expert used to reach the valuation, only that it was a “fair” rather than “market” value.
664.Counsel for the husband submitted that the difference in the reports was factual rather than differences of expertise, citing the example of the stated age of the building. It was submitted that no evidence was presented in the adversarial report as to how the age of the building was reached.
665.It was further submitted that the proposed adversarial expert had no access to the properties in question. He stated that although the report said they attended the property, no request to access the building was made, and the photographs annexed to the report were external shots only. Further, the court’s attention was drawn to page 8 of the report, where it said
Our report does not pertain to be exhaustive in this respect. Photographs of a premises taken during the inspection are given to the appendix”
and later at p 9 “We have not been provided with topographical charts, floor plans, or any kind of planning consents of the subject property”. And further at p 13“Note that the descriptions that refer to the interior of a house are based upon the transmitted photos
666.In light of the above, it was submitted that the report of Mr SR outlined the work they did in making their assessment, and that there is no evidence to that effect in the adversarial evidence. Given that lack, it was submitted that even were the report to be allowed by the court, there could be little weight given to it.
667.Mr Mater made no submissions in reply, except that he did not concede to the submission of the husband’s counsel in relation to the weight to be placed on the report.
668.I did not allow the applicant of the wife to be able to adduce adversarial evidence as sought. I considered that the application was too late in the proceeding (the last day of the trial which had been listed) and I accepted the submissions made by all the respondents.
669.When the trial had to be relisted and clearly would not be decided for some time, no further application was made to call this evidence. The submission of the wife was quite to the contrary. It was that she had no funds to run the case any longer.
Orders made 10 May 2010
670.The payment of funds between the parties by order of 10 May 2010 was to be characterised by final orders (distribution to the parties in equal shares of the funds in Bank of Europe).
671.I consider the payment to be a partial property payment. I have had regard to this as a contribution made by the husband.
Costs
672.The orders I propose to make will provide for the parties to file and serve any costs applications by 23 January 2015 and I have set a hearing date for any cost application for 9 February 2015. I will provide for the fund of money to be paid to the wife from the parties trust account not be paid until after 9 February 2015. I do that because there may be a cost applicant made against the wife and the funds referred to would be the only fund available to meet any costs order should one be made.
I certify that the preceding six hundred and seventy-two (672) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench dated 24 December 2014.
Associate:
Date: 24 December 2014
ANNEXURE
Amount $ Principal Debtor Paid by Guarantors Share by each Principal Debtor/
GuarantorH & Wife to Contribute Mr G & Ms X to Contribute Mr N and S to Contribute K to contribute U to contribute Business Options Instalment Loan $68,969.19 U P&A PL, AL, W, H, N, S, K $9,852.74 $19,705.48 $9,705.48 $19,705.48 $9,852.74 NAB Line of Credit $225,932.13 U P&A PL, AL, W, H, N, S, K $32,276.02 $64,552.04 $64,552.04 $64,552.04 $32,276.02 NAB Business Plus $701,264.96 U N&S PL, AL, W, H, N, S, K $100,180.71 $200,361.42 $200,361.42 $200,361.42 $100,180.71 Market Rate Facility $400,000.00 U N&S PL, AL, W, H, N, S, K $57,142.86 $114,285.71 $114,285.71 $114,285.71 $57,142.86 Interest Account on Market Rate Facility $1,513.25 U N&S PL, AL, W, H, N, S, K $216.18 $432.36 $432.36 $432.36 $216.18 Business Option Instalment Loan $339,355.97 U N&S PL, AL, W, H, N, S, K $48,479.42 $96,958.85 $96,958.85 $96,958.85 $48,479.42 Outstanding Arrears to NAB in relation to the D Street Property $46,735.89 PL, AL, W, H N&S $11,683.97 $23,367.95 $23,367.95 K Cheque Account $33,585.02 K M&S PL, AL, W, H, N, S, B $4,797.86 $9,595.72 $9,595.72 $9,595.72 $4,797.86 K Fitout Account $855,795.24 K M&S PL, AL, W, H, N, S, B $122,256.46 $244,512.93 $244,512.93 $244,512.93 $122,256.46 Shortfall on Bill Line Facility $702,294.81 PL, AL, W, H M&S $175,573.70 $351,147.41 $351,147.41 U Trade Finance Facility $184,809.48 U N&S PL, AL, W, H, N, S, K $26,401.35 $52,802.71 $52,802.71 $52,802.71 $26,401.35 Subtotal $3,560,255.94 $1,177,722.56 $1,177,722.56 $803,207.21 $274,549.28 $127,054.32 Less amount paid $1,591,675.07 $294,901.32 $1,673,679.55 $ $ Amount to be refunded $413,952.51 $870,472.34 Amount to be paid $ $822,821.24 $ $274,549.28 $127,054.32
Key Legal Topics
Areas of Law
-
Family Law
-
Commercial Law
-
Equity & Trusts
Legal Concepts
-
Remedies
-
Costs
-
Consent
5
1