Lenova and Lenova and Ors

[2010] FamCA 655

FAMILY COURT OF AUSTRALIA

LENOVA & LENOVA AND OTHERS [2010] FamCA 655

FAMILY LAW – PROPERTY – Consent orders

APPLICANT: Ms Lenova

1^ST RESPONDENT: Mr Lenova

2^ND RESPONDENT: L Lenova

3^RD RESPONDENT: J Lenova

FILE NUMBER: MLC 5218 of 2009

DATE DELIVERED: 22 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 22 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Brown SC with him Ms S. Johns

SOLICITOR FOR THE 1^ST RESPONDENT: Mr T. Puckey

SOLICITOR FOR THE 2^ND AND 3^RD RESPONDENTS: Ms J. Stewart

Orders

IT IS ORDERED BY CONSENT:

1. THAT forthwith and in any event no later than the expiration of twenty four (24) hours the wife do all things necessary and sign all such documents as are required to:-

   1.1.complete her obligations under the contracts of sale of real property entered into by her, either personally or on behalf of Lenova Nominees Pty Ltd, as vendors, on or about 1 July 2008 with the following persons and/or entities as purchasers (and without limiting the generality thereof executing the transfers of land in respect of folio identifiers 1/…, 2/… and 4/… annexed to these orders marked Schedule "A" and all documents to transfer water entitlements, water allocations or carryover entitlements):-

   1.1.1.L Lenova as trustee for the L Lenova Family Trust;

   1.1.2.L Lenova Pty Ltd as trustee for the L Lenova Investment Trust; and

   1.1.3.J Lenova Pty Ltd as trustee for the J Lenova Investment Trust

   (collectively "contracts");

   1.2.pay or cause to be paid to the third respondent, J Lenova, all funds in the Westpac Banking Corporation Account Number …83.

2. THAT on or before the expiration of sixty (60) days the husband do all things necessary and sign all such documents as are required at the wife's sole expense to transfer to the wife all that, his right title and interest in the dwelling situate at and known as Lot 3, E, in the State of New South Wales more particularly described as the whole of the land comprised in folio identifier 3/… (inclusive of the parcel of land described by that area shaded yellow on the plan attached hereto marked Schedule “B” which land shall be incorporated into the title by sub-division and complete the syndicate of the E Properties to provide to the wife two (2) mega litres of stock and domestic water entitlement) ("lot 3") subject to the following:-

   2.1.the husband, the second and third respondents each have sole use and occupation of that part of Lot 3 ("Husband's Land") more particularly described in the area which is cross-hatched on the plan attached hereto marked Schedule "B";

   2.2.the third respondent or his nominee shall have a pre-emptive right to purchase Lot 3 from the wife for a consideration that shall be as agreed and in default of agreement as shall be equivalent to the highest bid (excluding vendor's bids) received at a public auction or private sale of Lot 3 (subject to the third respondent's pre-emptive right) such auction or private sale to occur on or before the expiration of sixty (60) days from the date upon which the third respondent gives notice that he intends to exercise his option to purchase in accordance with the provisions of order 2.2.2. Hereof and the cost of such auction or private sale (inclusive of advertising expenses) be solely borne by the wife and further for the purposes of the third respondent's pre-emptive right to purchase Lot 3:-

   2.2.1.the wife give the third respondent written notice of her intention to sell Lot 3 by registered post to the registered office of J Lenova Pty Ltd; and

   2.2.2.the third respondent give notice of his intention to exercise his option to purchase Lot 3 (subject to the amount of the highest bid achieved at auction excluding vendor bids) on or before the expiration of 60 (sixty) days of receipt of the written notice by the wife pursuant to the provisions of order 2.2.1 hereof by written notice to the wife at Lot 3;

   2.2.3.Lot 3 be transferred to the third respondent should he so exercise the option following the aforesaid public auction or proposed private sale by way of contract of sale as shall be of standard use in the State of New South Wales of ninety (90) days duration;

   and for the avoidance of doubt the provisions of this order and the rights and obligations of the wife and the third respondent pursuant thereto are binding upon the heirs, executors, administrators, assignees, estates and personal legal representative of each of the wife and the third respondent;

   2.3.the wife's execution of a lease of the husband's land in favour of the husband or his nominee in such terms as the husband in his sole discretion shall require save that the total payment in respect of rental, outgoings and any other expense in relation to the husband’s land shall be fixed in the sum of $100 per calendar month and the cost of electricity supplied to the husband's land provided same is separately metered.

3. THAT contemporaneously with the husband's compliance with his obligations  pursuant to the provisions of orders 2 and 5 hereof the wife do all things necessary and sign all such documents as are required to:-

   3.1.make available to the husband's nominated agent all those chattels more particularly described in the Schedule marked "C" hereto;

   3.2.relinquish any entitlement she may have or may have had to the following entities, including any assets they may own:

   3.2.1.Lenova Pty Ltd;

   3.2.2.Lenova Nominees Pty Ltd;

   3.2.3.G Lenova Pty Ltd;

   3.2.4.LJ Pty Ltd;

   3.2.5.EP Pty Ltd;

   3.2.6.T Pty Ltd;

   3.2.7.GF Pty Ltd;

   3.2.8.G Pty Ltd;

   3.2.9.The T Partnership,

   (collectively "Lenova Companies");

   3.3.transfer to the husband or his nominee any shares she may hold in the Lenova Companies;

   3.4.Transfer to the husband all that her right title and interest in the jointly held AMP shares;

   3.5.Transfer to the husband, at his expense, all of her right, title and interest in the Westpac term life policy insurance cover number … and/or amend the nominated beneficiary from the wife to the husband’s nominee as the husband shall require;

   3.6.resign any position she may hold in the Lenova Companies;

   3.7.relinquish any entitlement she may have or may have had to the following trusts, including any funds standing to her credit in loan accounts therein and to any assets they may own:

   3.7.1.Lenova Unit Trust;

   3.7.2.Lenova  Family Trust No.1;

   3.7.3.Lenova Family Trust No. 2;

   3.7.4.EP Trust,

   (collectively "Lenova Trusts");

   3.8.remove her name from all bank accounts held by the Lenova Companies and/or Lenova Trusts or any one of them;

   3.9.relinquish all entitlement to the ownership and/or use of the telephone number, fax number and email address of the Lenova Companies and the Lenova Trusts;

   3.10.consent to her removal as a beneficiary of each of:-

   3.10.1.The Lenova Family Trust No. 1;

   3.10.2.The Lenova Family Trust No. 2; and

   3.10.3.The EP Trust;

   3.11.resign as appointor and guardian of the following trusts:-

   3.11.1.The Lenova Family Trust No. 1;

   3.11.2.The Lenova Family Trust No. 2; and

   3.11.3.The EP Trust.

   3.12.relinquish all right title and claim in respect of:-

   3.12.1.any racehorse previously owned by the husband and/or the wife;

   3.12.2.any progeny or future progeny from such racehorses; and

   3.12.3.any prize money, income or sales proceeds from such racehorses.

4. THAT in the event that the wife fails to comply with her obligations pursuant to the provisions of order 1, 3 and 9 hereof to sign any instrument or document required thereunder, a Registrar of this Honourable Court be appointed pursuant to the provisions of Section 106a of the Family Law Act 1975 to execute the said documents in her place.

5. THAT, on or before the expiration of sixty (60) days and subject to the wife's full and complete compliance with the provisions of order 1 hereof, and contemporaneously with the wife's full and complete compliance with all of her obligations pursuant to the provisions of order 3 and 9 hereof, the husband do all acts and things necessary to:

   5.1.pay or cause to be paid to the wife's lawyers the sum of Eight Hundred and Fifty Thousand Dollars ($850,000);

   5.2.indemnify the wife and keep the wife indemnified against all liability of whatsoever nature and kind, including taxation liabilities, costs, penalties and claims arising from or in relation to the Lenova Companies and Lenova Trusts INCLUDING any liability personally guaranteed by the wife and any personal taxation of the wife relating to the financial year ended 30 June 2010 and prior arising from income paid to her by the Lenova Companies and/or the Lenova Trusts and including any amounts owed by the wife to the Lenova Trusts; and

   5.3.use his best endeavours to procure the release of the wife from any and all personal guarantees provided by her to Westpac Banking Corporation in favour of the Lenova Companies and the Lenova Trusts.

5ATHAT pending the payment in order 5.1 being made in full the husband by himself and the Lenova Companies and Trusts and the second and third respondents be restrained from encumbering any of the properties retained by them pursuant to these orders without first making the payment in order 5.1.

1. THAT on or before the expiration of fourteen (14) days the husband and the wife in their capacity as directors of Lenova Pty Ltd do all things necessary and sign all such documents as may be required to transfer the Toyota Sahara motor vehicle registration number … to the wife at her expense.

2. THAT subject to her full and complete compliance with the obligations imposed upon her by the provisions of these orders the wife retain to the exclusion of the husband and the husband relinquish any entitlement he may have or may have had to the following:-

   7.1.the real property situate at and known as R property ("R Property") being the whole of the land more particularly described in Certificate of Title Volume .. Folio … subject to Mortgage No. … from the Commonwealth Bank secured over the said property ("Commonwealth Bank Mortgage");

   7.2.funds standing to her credit in any bank accounts in her sole name;

   7.3.her entitlement in the Lenova Superannuation Fund ("Fund"); and

   7.4.the contents of R Property and Lot 3 save for the items listed in Schedule "C".

3. THAT subject to full and complete compliance with his obligations pursuant to the provisions of these orders the husband retain to the exclusion of the wife and the wife relinquish any entitlement she may have or may have had to the following:-

   8.1.funds standing to the husband's credit in any bank accounts; and

   8.2.his entitlement in the fund to be transferred by him to a fund of his choice in accordance with the provisions of order 9 hereof.

4. THAT::-

   9.1.on or before the expiration of sixty (60) days the husband and the wife do all things necessary and sign all such documents as may be required to:-

   9.1.1.calculate the entitlement of the husband in the fund;

   9.1.2.calculate the entitlement of the third respondent in the fund;

   9.1.3.roll over the husband's entitlement in the Fund to a superannuation fund of his choice;

   9.1.4.roll over the third respondent's entitlement in the Fund to a superannuation fund of his choice; and

   9.2.contemporaneously with:-

   9.2.1.the transfer of the husband's entitlement in accordance with the provisions of order 9.1.3 hereof the husband, at his expense, provide to the wife a signed resignation as a member and trustee respectively of the Fund and relinquish all claim and entitlement thereunder; and

   9.2.2.the transfer of the third respondent's entitlement in accordance with the provisions of order 9.1.4 hereof the third respondent, at his expense, provide to the wife a signed resignation as a member and trustee respectively of the Fund and relinquish all claim and entitlement thereunder.

5. THAT the wife indemnify the husband and keep him effectively indemnified against:

   10.1.her personal credit card liabilities;

   10.2.all liability of and in relation to R Property and Lot 3 respectively and without limiting the generality thereof against all rates, taxes and mortgage payments in relation thereto;

   10.3.the Commonwealth Bank mortgage; and

   10.4.all liability of whatsoever nature and kind, including taxation liabilities, fines, penalties or costs arising from or in relation to, the fund and from all proceedings costs claims demands in respect thereof.

6. THAT to the extent that it is necessary, on or before the expiration of seven (7) days the husband do all things necessary and sign all such documents as are required to complete his obligations under the contracts.

7. THAT unless otherwise specified in these orders and save for the purposes of enforcement of these or any subsequent orders:-

   12.1.the husband and the wife be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

   12.2.the husband and the wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   12.3.insurance policies shall remain the sole property of the owner named therein save that the wife shall retain the benefit of the insurance policies on Lot 3, R Property and the Toyota Sahara paid until 30 June 2011 and the husband provide a copy of the relevant policies to the wife's lawyers;

   12.4.each party forego any claim they may have for superannuation, long service leave, retirement, redundancy or like benefits belonging to or earned by the other.

8. THAT the wife, by herself her servants or agents be and is hereby restrained from:-

   13.1.approaching any employee, professional adviser or customer of the business conducted by the Lenova Companies and Lenova Trusts;

   13.2.from entering, attending at or remaining upon any premises owned by, or leased by, any or all of the Lenova Companies, Lenova Trusts, the husband, the second respondent and the third respondent;

   13.3.engaging in conduct designed to, or with the effect of, disrupting the business operations of the Lenova Companies and Lenova Trusts; and

   13.4.selling, transferring, alienating or in any manner dealing with Lot 3 pending the transfer to the third respondent, or the third respondent declining to exercise his pre-emptive right to purchase Lot 3, whichever shall first occur, other than in accordance with order 2.2 hereof.

9. THAT any transaction entered into by the wife with the effect of defeating or avoiding or in any manner adversely affecting the third respondent's pre-emptive right to purchase Lot 3 is voidable pursuant to the provisions of Section 106B of the Family Law Act1975.

10. THAT the Application for Final Orders filed by the wife on 25 June 2009, the Amended Response to an Initiating Application of the husband filed 23 April 2010, the Response to Initiating Application filed by the second and third respondents on 21 January 2010 and the Further Amended Initiating Application of the wife filed 24 June 2010 and all other extant applications be and are hereby dismissed

11. THAT the following orders be and are hereby discharged:

    16.1.paragraph 3 of the orders made 25 June 2009;

    16.2.paragraphs 1 to 4 inclusive of the orders made 20 July 2009 save for the order providing for payments of $6,500 per calendar month to the parties which shall be discharged with effect from the date of the payment in order 5.1;

    16.3.paragraph 1 of the orders made 21 October 2009;

    16.4.paragraph 3 of the orders made 29 April 2010 (regarding the single expert witness obligations to provide details of conversations);

    16.5.all extant costs orders.

12. THAT the parties each respectively bear their own costs.

13. THAT the minute of orders remain upon the court file.

14. THAT all extant applications are dismissed and proceedings removed from the docket of Young J and the hearing listed for 6 September 2010 be vacated.

IT IS ORDERED NOT BY CONSENT:

1. THAT the husband's application for divorce filed 22 July 2010 be transferred to the Federal Magistrates Court at Melbourne and service thereof is hereby dispensed with.

2. THAT all subpoenaed documents be returned to the person or organisation by whom they were produced to the court.

3. THAT any subpoena returnable before Registrar Sikiotis is to be set aside and the date for return thereof on 23 July 2010 is hereby vacated.

4. THAT the submissions of all counsel and the extempore reasons for judgement given this day be transcribed and copies made available to all parties.

IT IS NOTED:

A.That pursuant to section 81 of the Family Law Act1975, the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings them.

B.THAT the parties have this day executed a financial agreement pursuant to the provisions of Section 90C of the Family Law Act.

C.THAT notwithstanding the provisions of order 1.1 hereof, each party acknowledges that the real property transferred under the contracts of sale of land is to be available to the wife for the purposes of enforcing the payment of the settlement sum pursuant to the provisions of order 5.1 hereof in the event of default.

IT IS NOTED that publication of this judgment under the pseudonym Lenova & Lenova and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:     MLC 5218 of 2009

MS LENOVA

Applicant

And

MR LENOVA

1^ST Respondent

L LENOVA

2^ND Respondent

J LENOVA

3^RD Respondent

REASONS FOR JUDGMENT

1. I have before me final consent orders and I have received submissions from Counsel upon which I rely in support of the orders.  I will give approval to these final property orders.  I am satisfied that the wife through her Senior Counsel and Ms Johns has had fully explained to her and she therefore should understand the full terms of the settlement.  She is now out of Court for personal reasons and I am accepting of those reasons. 

2. It is a long marriage.  There is a contribution made by both the husband and wife on many bases including direct financial and non-financial hard work, day in and day out, and primary parent and homemaker case all encapsulated within s 79(4).  The outcome of this settlement is said by Counsel to be both financially prudent but also a matter of common sense in preserving the structures of the business and dealing with its assets in an agreed way that is commercial and accords with estate planning.  That is said to be the intention of both parties.

3. The primary issue is that the wife needs to know and understand all of the agreed terms and, as I said, I am accepting of that fact as carefully explained to be by her Senior Counsel.  The settlement to her, within the wider pool of what she considered the assets to be, is not substantial.  But I balance that against the current financial concerns and debts of the business and what the husband said the net pool actually totalled.  No doubt he would be of a view that what the wife is getting is a considerable sum vis-a-vis his position and his reliance on the children and their goodwill and understanding of his needs and of the wider family. 

4. All matters considered the wife has a limited future income stream ongoing, some money will remain in the bank and a house. How she lives and develops within her community are matters that are not the primary concern of the Court in accepting the consent orders. They are family and community related but it is to be hoped that she progresses in her own health, wellbeing and stability. Again I do not intend to venture outside the areas that fall under the umbrella of what is a just and equitable outcome under s 79(2) of the Family Law Act.  I am satisfied that these orders present a final outcome to complex, costly litigation that most likely was ongoing well beyond September of this year where I had four days only to hear the matter.  The costs of the case would thus have been much greater.  I will endorse the agreed outcome and thereby the finality of the settlement.  I conclude on what I have been told and on my reading of the complex file, and all untested facts, that these orders are appropriate, just and equitable.

1. There is a notation under section 81 of the Family Law Act.  I am also aware that there is a binding financial agreement but I do not know its terms and I have not been given that document to read.  As to the divorce application, I will order, and the husband’s solicitors will incorporate, not by consent, within the order the transfer of the application for divorce that was returnable today to the Federal Magistrates Court and with a dispensation of service. 

2. The effect of the orders are to discharge all existing orders of the Court that were ongoing until this day.  It also discharges all past costs or costs reserved orders so that the effect is each party is responsible for their own costs to the extent that there was a letter filed under Rule 19.04.  The Rule 19.04 letters can be returned by my Court officer to practitioners.  All subpoenas are forthwith to be returned.  I will have the solicitor for the husband engross and forward the consent orders by email transmission to my associate, preferably tomorrow. 

3. My question to Counsel is what happens to all of the exhibits annexed to the consent order?  Are they to be copied and forwarded, so when the order is engrossed it has a small book of exhibits?

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: