Lennon and Lennon

[2013] FamCA 1144

FAMILY COURT OF AUSTRALIA

LENNON & LENNON [2013] FamCA 1144

FAMILY LAW – PROPERTY – Consent orders – just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lennon

RESPONDENT: Mr Lennon

FILE NUMBER: MLC 10143 of 2012

DATE DELIVERED: 15 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Shannessy

SOLICITOR FOR THE APPLICANT: Cahill & Rowe Solicitors

COUNSEL FOR THE RESPONDENT: Ms Badenoch

SOLICITOR FOR THE RESPONDENT: Logie-Smith Lanyon

Orders

BY CONSENT IT IS ORDERED

1. That the wife forthwith do all acts and things to;

   (i)re-finance into her sole name the mortgage account number BSB … number … to the Bendigo Bank in the approximate sum of $1,330,000 secured on the title to B Street, Suburb C (“the B Street property”)

   (ii)contemporaneously with the re-finance into her name to

   a.pay to the husband the sum of $35,000; and

   b.provide to the husband a discharge of his liability thereunder.

2. That, in the event the Wife has not re-financed the Bendigo Bank loans secured by the B Street property by 30 November 2013, the Wife do all such acts and things and sign all documents necessary to sell the B Street property for a price no less than the total amount outstanding pursuant to the mortgage referred to in paragraph 1 hereof  by 7^th November 2013, and the Wife keep the Husband informed with respect to the sale of the property.

3. That upon the Wife complying with either paragraph 1 or 2 hereof and the B Street property being sold, the Husband remove at his expense the caveat No. … lodged by him over the said property, and cause the removal of caveat No. … lodged over the said property by the Lennon Partnership.

4. Upon the settlement of the sale of the B Street property the proceeds shall be applied as follows:

   (i)First, to pay all costs, commissions and expenses of the sale;

   (ii)Secondly to discharge the B Street mortgage to the Bendigo Bank in the approximate sum of $1,330,000 and any other encumbrance affecting the real property, including but not limited to the Council rates outstanding;

   (iii)Thirdly that the sum of $35,000 be paid to the Husband;

   (iv)Fourthly the balance then remaining be paid to the Wife.

5. That for the purposes of the either the transfer referred to in paragraph 1 or the sale referred to in paragraph 2 hereof, the Wife forthwith and at her expense remove any and all caveats lodged by her or on her behalf over the B Street property and the B Street unit owned by K Pty Ltd.

6. That if the wife has not discharged her obligations under paragraph 1 hereof by 30 November 2013 each party shall do all such acts and things and sign all documents to complete the sale of the B Street property in accordance with paragraphs 2 and 3 hereof.

7. That contemporaneously with the discharge of the wife’s obligations under paragraph 1 hereof or 30 November 2013 (whichever is the earlier)

   (i)the Wife, at her expense, do all such acts and things and sign all documents necessary to withdraw all caveats lodged by her over the property at D Street, E Town;

   (ii)The Wife do all such acts and things and sign all documents necessary to transfer to the Husband at his expense all her interest in the property known as and situate at D Street, E Town (“the D Street property”) and the Husband indemnify and discharge the Wife with respect to all encumbrances affecting the D Street property and all rates, taxes and other apportionable outgoings of or with respect to the said property of whatsoever nature or kind.

8. That, in the event the Husband has not re-financed the Bendigo Bank loans secured by the D Street property by 30 November 2013, the Wife do all such acts and things and sign all documents necessary to transfer to the Husband at his expense for sale a sale by him forthwith of the D Street property, and the Husband keep the Wife informed with respect to the sale of the property.

9. That in the event of a sale pursuant to paragraph 8 hereof, the Wife remove at her own expense all caveats lodged by her or on her behalf over the D Street property.

10. That upon any sale of the D Street property pursuant to paragraph 8 hereof, the proceeds of sale be disbursed as follows:

    (i)To pay all costs, commissions and expenses of the said sale;

    (ii)To pay the balance of the D Street mortgage being loan number BSB … number … outstanding to the Bendigo Bank with a balance of approximately $1,140,000;

    (iii)Any balance then remaining to the Husband.

11. That upon the making of these Orders:

    (i)the Husband indemnify the Wife in respect of the Rabobank debt in the sum of approximately $250,000 in respect of paragraph (b) of schedule A of the Standstill Agreement entered into between the parties and the Rabobank, a copy of which is annexed hereto and marked “Annexure A’;

    (ii)the Husband use his best endeavours to release and indemnify the Wife from any liability for repayments to L Pty Ltd and her personal guarantee in respect of the debt owing to L Pty Ltd;

    (iii)that the Wife forthwith do all such acts and things and sign all documents necessary for her to resign as a Director and transfer to the Husband (or his nominee)  at the Husband’s expense any shareholding, and otherwise relinquish any interest she has in the following entities:

    a.   B Street Investments Pty Ltd;

    b.   The Lennon Family Trust;

    c.   Lennon Family Superannuation Fund, subject to the Husband’s compliance with paragraph 4 hereof;

    d.   Lennon Partnership

    e.   J Vineyards Unit Trust;

    f.      J Vineyards Pty Ltd;

    g.   Lennon Partnership;

    h.   Lennon Investments No2;

    i.    Lennon Vineyards P/L;

    j.    Lennon Family Wines P/L;

    k.   F Pty Ltd P/L;

    l.    Lennon Wines P/L;

    m.    Lennon Labour Hire P/L;

    n.   G Pty Ltd P/L;

    o.   G Pty Ltd Unit Trust;

    p.   H Pty Ltd P/L;

    q.   H Pty Ltd Unit Trust;

    r.      J P/L;

    s.   J Unit Trust;

    t.    LSF Superannuation Fund;

    u.   Lennon super P/L atf Lennon Superannuation Fund;

    v.   K Trading P/L atf K Holding Family Trust;

    w.     B Street Investments P/L atf the Lennon Family Trust;

    x.   Lennon Investments P/L;

    y.   Lennon Property Group P/L;

    z.   M P/L atf M Investment Trust;

    aa.   N Property Trust.

    (iv)That the Husband indemnify the Wife and keep her indemnified in respect of the liabilities of the entities referred to in paragraph 7 (iii) hereof, and use his best endeavours to obtain the Wife’s release pursuant to any loan, guarantee or other liability in respect of those entities;

    (v)The Husband do all such acts and things and sign all documents to transfer to the Wife at his expense the 4WD motor vehicle registration number …, and the Wife keep the Husband indemnified in respect of all expenses and liability relating to the said vehicle.  The parties note that this paragraph has already been complied with insofar as the transfer and delivery of the vehicle is concerned.

12. That both parties do all such acts and things and sign all documents to transfer to a superannuation fund nominated in writing by the wife the Wife’s member balance held in the LSF Superannuation Fund in the approximate amount of $60,000.

13. That the parties, their servants and agents keep confidential these Orders, these proceedings, and all documents in each party’s possession relating to these proceedings or any entity the subject of these proceedings, including but not limited to the Wife not disseminating to any third party any documents obtained by her (however obtained) during the course of these proceedings.

14. The husband and the wife do all acts and things required of them to comply with the terms of the Deed of Forbearance entered into by them with the Bendigo Bank, a true copy of which is annexed hereto and marked “Annexure B”.

15. That in the event that either party fails or refuses to comply with any obligation under these Orders, a Registrar of the Melbourne Registry of this Court be appointed pursuant to s106A of the Family Law Act to execute any documents required of either of them under these Orders.

16. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

    (i)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of the party as at the date of these Orders (the furniture, personal possessions and like chattels in the property at B Street, Suburb C being deemed to be in the possession of the Wife and those in the property at D Street, E Town being deemed to be in the possession of the Husband);

    (ii)Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband;

    (iii)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

    (iv)Insurance policies remain the sole property of the owner named thereon;

    (v)Each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

    (vi)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

17. That the Application of the Wife filed 5 November 2012 and the Response of the Husband filed 7 January 2013 be otherwise dismissed and these proceedings removed from the pending cases list awaiting hearing.

AND IT IS DIRECTED THAT

1. The Minutes of Consent Orders remain on the Court file.

2. All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel

THE COURT NOTES BY CONSENT

A.That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.That the parties will enter into a Binding Financial Agreement contemporaneously with these Orders, making provision for payment of “dollar for dollar” spousal maintenance one to the other in finalisation of all outstanding financial liabilities each party may have to the other party arising out of their relationship.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10143 of 2012

Ms Lennon

Applicant

And

Mr Lennon

Respondent

REASONS

1. These proceedings involve a complex corporate structure made more complicated, it would appear, by the financial difficulties the business is experiencing. There is, on one side, arguably a debt of some $75 million.  There is also a dispute as to whether or not the parties would be entitled to claim an interest in a property owned by a trust of which their two adult sons are the directors of the trustee company.  That would appear to be just two of the many issues that the matter would involve if it were to proceed. 

2. The parties are well-represented.  They have experienced legal advisers and, no doubt, there have been financial advisers involved as well. As is often the case this would appear to be a commercial resolution and in order to resolve the matter without the need for further litigation they have agreed upon an outcome without necessarily having agreed upon all the facts in the matter.

3. The parties are no longer living in a marital relationship.  They no longer have the common use of the property which they own, and all of the assumptions that underpinned their financial arrangements and how they held their property have changed as a result of the end of their relationship.  Those arrangements that were previously appropriate during their marriage are clearly no longer appropriate and, in all of the circumstances, it is therefore just and equitable that the Court make orders for a property settlement.

4. Even though it is impossible with absolute certainty to determine what percentage entitlement the parties may be receiving of the property which they have accumulated during their marriage, I am satisfied that these orders are in all of the circumstances just and equitable.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 15 November 2013.

Associate: 

Date:  27 November 2013