Laudani and Laudani and Anor

[2017] FamCA 607

FAMILY COURT OF AUSTRALIA

LAUDANI & LAUDANI AND ANOR [2017] FamCA 607

FAMILY LAW – Interim orders pending mediation of financial proceedings

APPLICANT: Ms Laudani

RESPONDENT: Mr Laudani

SECOND RESPONDENT:	B Pty Ltd
FILE NUMBER:	MLC	6507	of		2015

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carney

SOLICITOR FOR THE APPLICANT: Plaza Legal

COUNSEL FOR THE RESPONDENT:	Mr James
SOLICITOR FOR THE RESPONDENT:	Goldsmith Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Dunlop

SOLICITOR FOR THE SECOND RESPONDENT: Frenkel Partners

Orders

BY CONSENT OF THE APPLICANT WIFE AND THE RESPONDENT HUSBAND IT IS ORDERED THAT

1. The Husband and Wife do all acts things necessary to inform my Associate of the arrangements for the private mediation to which the parties have agreed and to instruct the mediator to notify her when the mediation has concluded.

2. The Husband and Wife be restrained by injunction from encumbering C Street, Suburb D Victoria … without the prior written consent of the other party or order of the court.

3. The Wife’s application for spousal maintenance and litigation funding be withdrawn with a right of reinstatement upon 21 days written notice to the Husband.

4. That each of the Husband and Wife within 14 days provide a written request to the other party for any documents they assert have not yet been provided by way of discovery and such documents  be produced within 21 days thereafter.

5. The Husband and Wife do all acts and things necessary to ensure that upon the sale of the property at E Street, Suburb F the proceeds be applied as follows.

   (a)       Firstly to the costs commissions and expenses of the sale and conveyancing fees;

   (b)       Secondly B Pty Ltd ANZ commercial bill (approximately $3,158,000);

   (c)       Thirdly B Pty Ltd creditors in the sum of $17,091;

   (d)       Fourthly the ANZ Business Loan No. …82 in the sum of approximately $124,666;

   (e)       Fifthly 50 per cent of the balance be paid to Mr G;

   (f)        Sixthly the remaining 50 per cent be held in an interest bearing controlled money account in the names of the parties by the Husband’s solicitor (“the controlled money account”) unless agreed otherwise in writing by the Husband and Wife or order of the court.

6. The Husband and Wife forthwith do all acts and things to appoint P Accountants or such other experts as agreed to value the Husband’s interests in the following.

   (i)H Pty Ltd ATF The Laudani Discretionary Trust;

   (ii)Laudani Enterprises Pty Ltd ATF The Laudani Trust;

   (iii)B Pty Ltd;

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

   (v)Any other business entity or partnership in which the Husband holds an interest (“the business valuation”).

7. The cost of the business valuation be paid at first instance out of the funds held in the controlled money account.

8. The parties obtain sworn valuations by K Group as to the current value of C Street, Suburb D and L Street, Suburb M at equal expense to each party and such valuations be available at least 14 days prior to any mediation taking place.

9. The parties attend upon Mr N or Mr O or such other mediator as agreed between the parties. Such mediation to take place by 31 October 2017 and the parties pay for half the mediator’s fees each.

10. The Husband and Wife provide any documents requested by the business valuer to complete the business valuation as reasonably directed.

11. Costs of the Husband and Wife and B Pty Ltd of this day be reserved.

12. Liberty be reserved to Husband and/or third party to apply in relation to payment of trade creditors or other creditors from funds referred to in Order 5 (f) of this Order.

IT IS FURTHER ORDERED BY THE COURT:

1. That my reasons for decision be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

1. That my Associate set a mention date before me within approximately 14 days of the mediation for directions for trial or further interim applications and including but not limited to valuation and litigation funding orders and removal of B Pty Ltd and the parties be and are hereby excused from filing anything other than necessary documentation provided they give 7 days’ notice to each other party of the orders sought.

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 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 in the judicial duty list and the parties, who are the husband, the wife and an entity formally operated by the husband and his partner, Mr G, which is B Pty Ltd. 

2. The parties have been able to adjust many matters in issue between them, but only on a temporary basis.  They are going to work towards a mediation at the end of October 2017.  In my view, it is important that they do so.

3. The assets of the husband and the wife comprise the former matrimonial home which is largely unencumbered.  That is, that it is worth approximately $2 million and has a mortgage on it of about $70,000.

4. There are the husband’s business interests which are operated by Mr G and the husband. The wife is particularly uncertain about those;  about the profitability and about the extent to which the husband and his partner might use entities, about which she knows little, to siphon funds or to deplete the assets in the hands of the husband to which the court would have recourse in making an alteration of property interests.  B Pty Ltd was a retail business.  It no longer trades.  However it owns valuable real estate at E Street, Suburb F (“the Suburb F property”) which is on the market for sale. There have been two offers of 2 million dollars but the husband and Mr G want 3 million dollars.  It was to be auctioned but now appears to be offered for private sale. What knowledge the wife has come through proceedings brought against her in the Supreme Court for removal of a caveat on the title to the Suburb F property.

5. No doubt, the wife’s lack of knowledge (and attendant lack of confidence) is in some part referable to the fact that the parties separated, on the wife’s version, in January 2009, some eight years ago, and neither has been entirely familiar with each other’s financial dealings since that time. I am informed that the delay in instituting proceedings is not due to amicable ongoing cooperation post separation.  For instance, there is an issue about the extent to which the husband obtained the wife’s consent to borrowings which were made against the former matrimonial home in 2009, shortly after separation. That is a festering wound and emblematic of the enduring conflict, lack of trust and perceived lack of information.

6. The third party, B Pty Ltd (“BPL”) seeks to be removed from the proceedings. 

7. BPL was joined by the wife naming them in her amended application or an iteration of it. The complaint, which was forcefully pursued by Mr Dunlop, counsel for BPL, is that there is no cause of action against the company pleaded or articulated in the wife’s material.  He relies on general principles, together with the decision of the Full Court in B Pty Ltd & Ors, the case neutral citation for which is (2008) FamCA C113, and in particular paragraph 52 in which their Honours make a point that it is not:

   proper to allow a joinder of third parties merely upon the formulation of a paragraph in or added to an application on the basis that the trial facts to support the application may be asserted and proved.  Submission of facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.

8. The decision in B Pty Ltd & Ors was a final decision on an alternation of property interests which involved a third party.  At this point the parties are in the midst of interim proceedings and no specific relief is sought against BPL.

9. It is conceivable to me how BPL should remain in as a party. However, I have been at pains to stress to the parties, and in particular the wife, that she may maintain them as a party at her peril and ultimately at her sole financial cost.  The necessity for BPL to be a party is a matter which I urge the wife to consider in the context of the mediation.  She should be in a position to address, and justify, certainly not later than the matter coming back to me one or two weeks after the mediation has been concluded.

10. I have not set a return date or an adjourned date because I want the parties to do the mediation and then come back to me when they have had some opportunity to exchange the orders that each of them seek against the others and to specify the material upon which they rely.  They can do that through my Associate.

11. It is not my intention to cause the parties any further expense than is necessary, so it is certainly not necessary for them to repeat anything that is already on affidavit; only such updating evidence as is necessary should be submitted.  The orders they seek at the post-mediation listing before me can be exchanged by correspondence and they should, as a matter of courtesy, let my associate have them prior to the mention.  I anticipate that I would allocate approximately one hour to the matter at 9 o’clock one morning, so the parties should be prepared to run their case within those prescribed time limits.

12. I have made clear to the parties that notwithstanding it is not set out in the orders, I would expect that counsel who are going to be briefed at the final hearing, appear for the parties at the mediation. That is so that the barristers can take responsibility for the matter settling or not resolving, in particular lack of any resolution.

13. Costs are an important consideration in this case.  Costs will be reserved.

14. That concludes the reasons. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 August 2017.

Associate: 

Date:  11 August 2017