Malaka & Lasso (No 3)
[2022] FedCFamC1F 270
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malaka & Lasso (No 3) [2022] FedCFamC1F 270
File number(s): SYC 5913 of 2017 Judgment of: WILSON J Date of judgment: 27 April 2022 Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST – parties in deadlock, unable to formulate a joint minute of consent orders, orders made. Legislation: Family Law Act 1975 s 105 Cases cited: Malaka & Lasso (No 2) [2022] FedCFamC1F 161 Division: Division 1 First Instance Number of paragraphs: 6 Date of last submissions: 24 March 2022 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: AS Family Lawyers Solicitor for the Respondent: ALP Lawyers ORDERS
SYC 5913 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MALAKA
Applicant
AND: MR LASSO
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.On or before 4:00pm on 11 May 2022 the husband must provide to the wife’s conveyancer, Mr RR, all documents fully executed by the husband and in registerable form to enable the registration to be effected in favour of the wife of a full transfer of the whole of the husband’s right, title and interest in the Suburb F property.
2.If the husband fails, refuses or omits to comply with the particulars of the orders made in paragraph 1 of these orders, whether by the date stipulated or in respect of the documentation that he is ordered to provide, pursuant to s 106A of the Family law Act, I order that a registrar of this Court shall forthwith execute such documentation as may be required so as to give effect to paragraph 1 of these orders.
3.The wife’s conveyancer, Mr RR, shall have carriage of all steps necessary to effect registration of the transfer of the whole of the husband’s right, title and interest in the Suburb F property from the husband to the wife absolutely.
4.Forthwith the husband must take all steps, including instructing all relevant persons, executing all relevant documents and performing all relevant activities to procure the discharge of his interest as mortgageor in the mortgage in favour of Commonwealth Bank of Australia over his right, title and interest in the Suburb H property.
5.For the avoidance of doubt, the steps that must be performed by the husband in accordance with paragraph 4 of these orders are independent of and not conditional or in any way connected with steps to be undertaken by the wife by way of refinancing of the mortgage over the Suburb H property.
6.Forthwith, the wife must take all steps including instructing all relevant persons, executing all relevant documents and performing all relevant activities to apply to refinance the mortgage presently encumbering the Suburb H property.
7.As soon as the wife applies to a lender in accordance with paragraph 6 hereof, the wife must notify the husband in writing that –
(a)she has in fact applied to refinance the mortgage presently encumbering the Suburb H property;
(b)the identity of the lender to which she has applied;
(c)the identity of the proposed borrowers in that loan application; and
(d)the likely date that the proposed lender and on which the lender has indicated that it will have a response to the loan application.
8.If any loan application made by the wife (with our without any proposed accompanying mortgagors) is unsuccessful, then –
(a)the wife must notify the husband forthwith that such loan application was unsuccessful; and
(b)immediately thereafter the wife must repeat the loan application process recorded in paragraph 6 hereof until such loan application is successful.
9.When the loan application made by the wife is successful, the wife must forthwith inform the husband –
(a)the identity of the lender;
(b)the identity of the borrower or borrowers;
(c)the sum to be borrowed;
(d)the sum to be advanced;
(e)the sum to discharge the existing mortgage in favour of the Commonwealth Bank of Australia; and
(f)the proposed settlement date to settle the refinancing application.
10.Upon the wife informing the husband of the matters set out in paragraph 9 hereof, the husband and wife must forthwith inform Commonwealth Bank of Australia with instructions for it to discharge its mortgage and to be ready, willing and able to settle on the date given in accordance with paragraph 9(f) hereof.
11.The husband must execute documentation so as to transfer his interest in the Suburb H property, as transferor, to the following transferees –
(a)as to 50%, to the wife; and
(b)as to the other 50%, to Mr R (born … 1995), Mr S (born …1997) and to X (born … 2002) in equal shares.
12.At settlement, the Suburb H property must be vacant, all keys must be handed to the wife along with all and every security device relevant to the property (with all applicable codes).
13.By noon on the 14th day following settlement, the wife must transfer to the husband the sum of $325,000 to the husband’s nominated account, without deduction.
14.I reserve to the wife leave for her to apply for order –
(a)in relation to outstanding spousal maintenance of $4000 as specified by the Honourable Justice Altobelli by order made on 28 January 2021;
(b)in relation to the wife’s legal costs; and
(c)in relation to any costs associated with repair work required to be done at the Suburb H property.
15.I adjourn the further hearing of this proceeding to 10:00am on 24 May 2022 before me.
16.Any application for costs of or incidental to any appearance before me subsequent to the registration of the arbitral award must be –
(a)filed and served by noon on 17 May 2022; and
(b)accompanied by proper affidavit material and submissions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
On 18 March 2022 I delivered reasons[1] in this proceeding after the wife made an application to enforce the arbitral award pursuant to s 105 of the Family Law Act. I determined that the arbitral award should be given effect but in accordance with a new timetable of dates.
[1] Malaka & Lasso (No 2) [2022] FedCFamC1F 161.
I ordered the parties to bring in a minute of consent orders by 4:00pm on 24 March 2022 that gave effect to my reasons. They did not do that.
On 24 March 2022 the solicitors for both the applicant and the respondent separately emailed to my associates a proposed minute of consent orders propounded by their respective clients. They both informed my associates that the parties were in deadlock and unable to agree on the terms of the minute of consent orders as I had ordered.
THE WIFE’S PROPOSED MINUTE OF CONSENT ORDERS
The wife proposed a minute of consent orders was articulated as follows –
1. That no later than 14 days from the date of these Orders that the Husband provide all documents in registrable form as requested by the Wife’s conveyancer, [Mr RR].
2. That no later than 21 days from the date of these Orders that the transfer of [G Street, Suburb H] (Folio Identifier …) is to be effected in accordance with the Arbitral Award dated 16 July 2021. p
3. That the property situated at [G Street, Suburb H] (Folio Identifier …) is to be vacant and all the keys to the property and any other security devices such as access codes given to Wife no later than 7 days after the transfer has been effected.
4.Within 7 days of Order 3 being complied with, the Wife is to return to the Husband $325,000 to the Husband’s nominated account:
a.less the outstanding spousal maintenance owed by the Husband to the Wife (as specified in Order 1 by Justice Altobelli on 28 January 2021) of $4,000;
b. less the Wife's legal costs of $7,692;
c.less the estimated costs of any recent damage to the [Suburb H] property, and
d. less any outstanding bills on the [Suburb H] property.
THE HUSBAND’S PROPOSED MINUTE OF CONSENT ORDERS
The husband’s proposed minute of consent orders was articulated as follows –
1.Within 14 days of the date of this Award the wife shall take all steps and sign all documents required to refinance the Commonwealth Bank Mortgage secured against the title to the property situate at [G Street, Suburb H] (Folio Identifier …) (“The [Suburb H] property”) and provide written notice to the Husband’s Representative that the wife has received loan approval. Upon receipt of such notice, The Husband shall do all acts and things and sign all documents required to cause the discharge of the said commonwealth bank mortgage.
2.Simultaneously with the Wife complying with Paragraph 1, the Husband shall transfer all of his right, title and interest in the [Suburb H] property as follows:
i. 50% to the wife; and
ii.50% to [Mr R] born […] 1995, Mr S born […]1997 and X born […] 2002 in equal shares.
And the Applicant wife and Respondent shall, to the extent necessary, sign all documents and do all things complete the transfer contained herein.
3.Simultaneously with Order 2 being complied with, the Wife is to return to the Husband the $325,000.00 to the Husband’s nominated account.
4. In the event that the wife fails to comply with Paragraph 1:
(a)The Husband shall be declared, to the exclusion of the wife, the owner at law and equity of the [Suburb H] property and the wife shall retain the $325,000.00 previously transfer by the Husband to the wife’s account on the 26 October 2021.
(b)The Wife must to the extent necessary, sign all documents and do all things to remove any caveat she had lodged on the [Suburb H] property.
CONSIDERATION
Having had the benefit of reading and considering each minute propounded by both the applicant and the respondent, I made the orders set out below. To my mind, the orders below record in a more chronologically sensible manner each step each party must take and by when –
(a)On or before 4:00pm on 11 May 2022 the husband must provide to the wife’s conveyancer, Mr RR, all documents fully executed by the husband and in registerable form to enable the registration to be effected in favour of the wife of a full transfer of the whole of the husband’s right, title and interest in the Suburb F property.
(b)If the husband fails, refuses or omits to comply with the particulars of the orders made in paragraph (a) of these orders, whether by the date stipulated or in respect of the documentation that he is ordered to provide, pursuant to s 106A of the Family law Act, I order that a registrar of this Court shall forthwith execute such documentation as may be required so as to give effect to paragraph (a) of these orders.
(c)The wife’s conveyancer, Mr RR, shall have carriage of all steps necessary to effect registration of the transfer of the whole of the husband’s right, title and interest in the Suburb H property from the husband to the wife absolutely.
(d)Forthwith the husband must take all steps, including instructing all relevant persons, executing all relevant documents and performing all relevant activities to procure the discharge of his interest as mortgageor in the mortgage in favour of Commonwealth Bank of Australia over his right, title and interest in the Suburb H property.
(e)For the avoidance of doubt, the steps that must be performed by the husband in accordance with paragraph (d) of these orders are independent of and not conditional or in any way connected with steps to be undertaken by the wife by way of refinancing of the mortgage over the Suburb H property.
(f)Forthwith, the wife must take all steps including instructing all relevant persons, executing all relevant documents and performing all relevant activities to apply to refinance the mortgage presently encumbering the Suburb H property.
(g)As soon as the wife applies to a lender in accordance with paragraph (f) hereof, the wife must notify the husband in writing that –
(i)she has in fact applied to refinance the mortgage presently encumbering the Suburb H property;
(ii)the identity of the lender to which she has applied;
(iii)the identity of the proposed borrowers in that loan application; and
(iv)the likely date that the proposed lender and on which the lender has indicated that it will have a response to the loan application.
(h)If any loan application made by the wife (with our without any proposed accompanying mortgagors) is unsuccessful, then –
(i)the wife must notify the husband forthwith that such loan application was unsuccessful; and
(ii)immediately thereafter the wife must repeat the loan application process recorded in paragraph (f) hereof until such loan application is successful.
(i)When the loan application made by the wife is successful, the wife must forthwith inform the husband –
(i)the identity of the lender;
(ii)the identity of the borrower or borrowers;
(iii)the sum to be borrowed;
(iv)the sum to be advanced;
(v)the sum to discharge the existing mortgage in favour of the Commonwealth Bank of Australia; and
(vi)the proposed settlement date to settle the refinancing application.
(j)Upon the wife informing the husband of the matters set out in paragraph (i) hereof, the husband and wife must forthwith inform Commonwealth Bank of Australia with instructions for it to discharge its mortgage and to be ready, willing and able to settle on the date given in accordance with paragraph (i)(vi) hereof.
(k)The husband must execute documentation so as to transfer his interest in the Suburb H property, as transferor, to the following transferees –
(i)as to 50%, to the wife; and
(ii)as to the other 50%, to Mr R (born … 1995), Mr S (born … 1997) and to X (born … 2002) in equal shares.
(l)At settlement, the Suburb H property must be vacant, all keys must be handed to the wife along with all and every security device relevant to the property (with all applicable codes).
(m)By noon on the 14th day following settlement, the wife must transfer to the husband the sum of $325,000 to the husband’s nominated account, without deduction.
(n)I reserve to the wife leave for her to apply for order –
(i)in relation to outstanding spousal maintenance of $4000 as specified by the Honourable Justice Altobelli by order made on 28 January 2021;
(ii)in relation to the wife’s legal costs; and
(iii)in relation to any costs associated with repair work required to be done at the Suburb H property.
(o)I adjourn the further hearing of this proceeding to 10:00am on 24 May 2022 before me.
(p)Any application for costs of or incidental to any appearance before me subsequent to the registration of the arbitral award must be –
(i)filed and served by noon on 17 May 2022; and
(ii)accompanied by property affidavit material and submissions.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 27 April 2022
0