Osmond & Osmond
[2023] FedCFamC1F 280
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Osmond & Osmond [2023] FedCFamC1F 280
File number(s): SYC 3012 of 2021 Judgment of: HARPER J Date of judgment: 11 April 2023 Catchwords: FAMILY LAW – PROPERTY – Husband sought to be appointed trustee of the sale of the land and business in his capacity as director of the company – Significant property pool – Minimal risk of wanton dissipation of assets in light of proximity to final hearing – Orders made appointing husband as trustee of the sale – Orders made pursuant to s 106A of the Family Law Act 1975 (Cth) to empower the husband to sign documents on behalf of the wife to complete the sale – Wife made oral application for interim property order unsupported by any affidavit evidence – Application for interim property settlement dismissed. Legislation: Family Law Act 1975 (Cth) s 106A Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 11 April 2023 Place: Sydney Solicitor for the Applicant: Mills Oakley Solicitor for the First Respondent: Gordon & Barry Lawyers Pty Ltd Solicitor for the Second and Third Respondents: No appearance ORDERS
SYC 3012 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OSMOND
Applicant
AND: MS OSMOND
First Respondent
B COMPANY
Second Respondent
C COMPANY
Third Respondent
order made by:
HARPER J
DATE OF ORDER:
11 APRIL 2023
THE COURT ORDERS THAT:
1.The Respondent Husband (“husband”) in his capacity as director of C Company be appointed trustee on the sale of the land known as D Street, Suburb E NSW, being all of the land comprised in Folio Identifier … (“Suburb E”).
2.For the purposes of Order 1 the husband shall be empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to sign on behalf of the Applicant Wife (“wife”) all documents required to complete the sale of Suburb E.
3.The husband shall keep the wife informed of the sale of Suburb E and the business conducted by F Company known as G Business located in Suburb E.
4.Costs stand reserved.
THE COURT NOTES THAT:
A.The husband has indicated in open Court that the proceeds of sale received by C Company in accordance with the existing contractual relations with H Company will be paid into ANZ bank account ending in 552 and held at the bank branch located in Sydney.
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 the pseudonym Osmond & Osmond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
The proceedings are listed for final hearing to commence on 16 October 2023 with an estimate of five days. There is no dispute that the property pool is extremely large although its precise quantification is a matter that will await a balance sheet closer to the final hearing.
There is no dispute that F Company has been the operator of the business known as the G Business and located on land at D Street, Suburb E in New South Wales (“Suburb E”). The Applicant Husband (“the husband”) is the sole director of F Company.
The registered proprietor of the land located at Suburb E is C Company which is the corporate trustee of a superannuation fund known as the Osmond Family Super Fund. The husband and the Respondent Wife (“the wife”) are co-directors of C Company.
F Company and C Company have entered into contracts to sell the business conducted by F Company and Suburb E to a purchaser called H Company. There was no dispute that the two contracts are interdependent and that there have been several extensions of time for completion of the sales which were originally to have settled in March 2023.
When the matter came before me on 11 April 2023, it was common ground that the settlement of the sales were to take place on the afternoon of 11 April 2023 at 4.00 pm. The application of the husband is that he be either appointed trustee for sale or empowered to complete the necessary documentation for C Company as vendor for the purposes of the settlement.
The wife apparently has resisted that course, but ultimately when the matter was heard before me it became apparent that both parties agreed that the sales should settle in accordance with the existing contracts on 11 April 2023. Of course, if they do not, by reason of the purchaser’s default, then it will be open to F Company, C Company, or both to exercise the rights they have pursuant to the existing contracts to forfeit any deposit monies paid or take other steps to claim damages from the purchaser in accordance with well-known principles.
Ultimately when the matter was before me on 11 April 2023, there appeared to be no real dispute that C Company should be put in a position to settle the sale in the afternoon and that the husband should be placed in a position to cause this to happen, as long as the proceeds of sale were paid into an ANZ bank account ending with the numerals 552 and held at the Sydney branch of the bank.
The more substantial area of dispute appeared to lie in relation to the proceeds of sale to be paid to F Company, in the sum of $2,000,000. The wife made an application orally for partial property settlement in relation to those proceeds of sale whereby each of the parties receive $1,000,000.
The husband quite candidly pointed out that that money was to be controlled by him through his sole directorship of F Company. But he also pointed out the proximity of the final hearing and the large property pool made the risk of wanton dissipation low and certainly something that could be cured if it happened by appropriate property adjustment orders at final hearing. That seemed to me to be correct.
Accordingly, I am persuaded that an order should be made empowering the husband to take the necessary steps or execute documents so that, in the event the purchaser is in a position to settle at 4.00 pm on 11 April 2023 with C Company, that should happen in accordance with the existing contract. In the event the purchaser is also in a position to settle with F Company, that should also take place in accordance with the existing contractual relationships.
I am not inclined to make any order for partial property settlement in circumstances where the application is made on the run and not supported by any affidavit evidence which would permit an order of that nature to be made in accordance with the well-known principles.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 11 April 2023. Associate:
Dated: 18 April 2023
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