Laudani and Laudani and Anor

[2017] FamCA 1118

FAMILY COURT OF AUSTRALIA

LAUDANI & LAUDANI AND ANOR [2017] FamCA 1118

FAMILY LAW – PRACTICE AND PROCEDURE – Interim draw down on mortgage to pay for single expert evaluation

APPLICANT: Ms Laudani

RESPONDENT: Mr Laudani

SECOND RESPONDENT: B Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6507 of 2015

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Plaza Legal

COUNSEL FOR THE RESPONDENT: Mr Arnold

SOLICITOR FOR THE RESPONDENT:	Goldsmiths Lawyers
COUNSEL FOR THE SECOND RESPONDENT:	No Appearance

SOLICITOR FOR THE SECOND RESPONDENT: Frenkel Partners

Orders

IT IS ORDERED THAT:

1.The husband and the wife do all acts and things necessary to draw down the sum of $20,000 secured against the mortgage on the former matrimonial home being the property situate at and known as C Street, Suburb Din the State of Victoria, such monies to be held on behalf of the parties by the solicitors for the wife and disbursed in payment of reasonable fees of P Accountants and then by agreement of the parties or pursuant to further order of the Court.

2.By not later than 12.00 noon on Friday 15 December 2017 the husband provide to the wife, via their respective solicitors, a copy of the terms and conditions and contracts constituting or associated with the alleged chattel mortgages the obligations for which are or may be cross-collateralised against the security over the property at E Street, Suburb F in the State of Victoria. Contemporaneously the husband provide to the wife all correspondence in 2017 between him or any entity in which he has an interest and ANZ Banking Corporation Ltd in relation to the chattel mortgages.

3.In respect of the private mediation which has been arranged by the parties on Friday 12 February 2018 to be convened by Mr O of Counsel at 10.00 a.m.:-

a)      The parties do all acts and things necessary to require the mediator to contact my Associate, …, at the conclusion of the mediation, to advise if the matter is resolved in its entirety and:-

i.if the matter is resolved, the mediator specify the manner in which the parties seek to formalise the settlement and my Associate list the matter as appropriate; and

ii.in the event that the matter is not resolved the parties and their practitioners proceed to court for directions before me;

b)The parties do all acts and things necessary to ensure that at the private mediation he/she is represented by counsel who is to be retained to appear for him/her at the trial, being Mr James for the husband, Mr Arnold for the wife and Mr S Dunlop for the second respondent;

c)I DIRECT that a sealed copy of this Order be forwarded to the mediator by my Associate under cover letter which draws his attention to the contents of this Order insofar as it pertains to the mediation;

4.I DIRECT that my Associate have the file to hand on 12 February 2018 in anticipation of being contacted by the mediator.

5.The parties do all acts and things necessary that any expert witness whose evidence is relevant to an asset in dispute is available to the mediator and the parties, at least by telephone, on the day of the mediation.

6.By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 9 February 2018, the practitioner for each party provide notice in writing to his/her client of:-

a)    the actual costs incurred by the client up to and including that date;

b)    any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c)    the costs payable for the private mediation;

d)    the costs payable for each day of the trial;

e)    the estimated length of the trial; and

f)     the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iiiif costs have been paid in cash, the details must identify the payer.

7.That contemporaneously with compliance by the practitioner concerned with paragraph 6 of this Order, the practitioner provide to my Associate -  email … - a copy of the notification given to his/her client pursuant to paragraph 6 of this Order AND IT IS DIRECTED that my Associate send a copy of the notification to:-

a)      the mediator; and

b)      to the other party to the proceedings.

8.There be liberty to the parties to cause subpoena(s) to issue between now and the final hearing.

9.Until further order I relieve the parties from compliance with r.13.26(3)(b) of the Family Law Rules in relation to Specific Questions.

10.The parties do all acts and things necessary to instruct P Accountants to release a draft of the valuation report in order to give each party an opportunity through their respective lawyers or other advisers to query any matters in the report before it is put in final form by not later than 24 January 2018.

11.My reasons for decision be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED BY THE COURT:

A.That, in the event that a party fails to comply with their obligation to prepare the matter for the private mediation to which they have agreed , the orders made in relation to the private mediation and the final hearing date may be vacated.

B.That the report by P Accountants should be available in final form by not later than 24 January 2018 and the estimate of its fees for the valuation is $3,500 to $5,000.

C.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Laudani & Laudani and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6507 of 2015

Ms Laudani

Applicant

And

Mr Laudani

Respondent

And

B Pty Ltd
Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as a mention following an appearance in the duty list, at which time the parties decided to proceed to a private mediation and obtain the necessary valuations of real property and business interests in anticipation of endeavouring to resolve the whole of the dispute. 

2. There was always going to be some difficulty in paying for the business valuation.  The parties have settled on valuers P Accountants, to value the husband’s interest in the four entities, being:

   a)H Pty Ltd ATF The Laudani Discretionary Trust;

   b)Laudani Enterprises Pty Ltd ATF The Laudani Trust;

   c)B Pty Ltd;

   d)J Pty Ltd ATF The Laudani Discretionary Trust No 2;

3. It was originally considered that the moneys may be available to the parties via – following the sale of commercial property at E Street, Suburb F.  That property was sold on 21 September, and settlement is scheduled to take place on 22 December 2017.  It is alleged by the husband, and the wife is not in a position currently to contradict, that four chattel mortgages to the value of approximately $65,000 may be cross-collateralised against the Suburb F properties which, if so, will result in there being no moneys available to the husband to apply for the benefit of him and the wife in the payment of fees to P Accountants. 

4. In the alternative, the husband seeks the business valuation be paid by a draw-down on the former matrimonial home.  That’s opposed by the wife, however the wife has no alternative source of funds to which she can point to that can be applied to pay the fees to be incurred with P Accountants.  She says baldly that the husband can pay and that she doesn’t know the contractual terms of the chattel mortgages.  In a matter of this nature, it’s important to get the valuation done and to get it done in a timely manner. As the wife points to no other available funds I will accede to the request of the husband to draw down on the mortgage.

5. The wife still wants to see the contractual documents associated with the chattel mortgages, being the terms of the mortgages themselves, as well as all correspondence which has been entered into by or on behalf of the husband or the entities and ANZ bank in relation to payment of the chattel mortgages.  I have made an order for the correspondence for the last year to be passed over, and that should occur by the end of this week. 

6. It is implicit in the submissions by Mr James that the husband does not otherwise have moneys sufficient to pay the valuation fees, which are said to be something in the vicinity of $5000.  That is a matter which will obviously be the subject of some investigation at trial retrospectively, but it is not appropriate for me to enter into evidence today in that respect. 

7. The parties have refined the arrangements for the mediation, which will now be conducted on 12 February 2018 by Mr O of counsel.  It is essential that counsel who are going to run the trial attend at the mediation. 

8. There has been no appearance by or on behalf of the third party today.  I have requested counsel who appears for the husband and wife to make it clear to the solicitors for the third party that they should contact my associate by close of business today to advise which member of counsel will appear on behalf of their client at the mediation. 

9. Finally, I recall that the matter which was previously the subject of an application and submissions was the dejoinder of the third parties.  The matter of retaining the third parties in the proceedings is a matter which the wife will have to justify after the mediation if the matter does not resolve.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 December 2017.

Associate: 

Date:  5 January 2017