Peroni and Kappa

[2017] FamCA 613

FAMILY COURT OF AUSTRALIA

PERONI & KAPPA [2017] FamCA 613

FAMILY LAW – PROPERTY – Partial property settlement – Where the husband seeks interim relief in the amount of $100,000 – Where the husband seeks the sale of an investment property jointly owned by the husband and wife to fund the relief sought by him – Where the wife seeks the opportunity to raise the $100,000 to pay to the husband in lieu of selling the property – Order made allowing the wife 28 days to raise $100,000 – Order made providing for sale of investment property if wife is unable to make payment to husband within 28 days.

Family Law Act 1975 (Cth) s 79

APPLICANT: Mr Peroni

RESPONDENT: Ms Kappa

FILE NUMBER: SYC 5788 of 2015

DATE DELIVERED: 17 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT: Mr Symons

SOLICITOR FOR THE RESPONDENT: Benjamin & Khoury

Orders

IT IS ORDERED

1. That within 28 days of the date of these orders, the wife pay to the husband, by way of interim property settlement, the sum of $100,000.

2. That the husband sign such documents as are required to allow the wife to borrow the sum of $100,000 using the security of the property at B Street, Suburb C provided that the wife is solely responsible for the repayment of any loan so raised.

3. That in the event that the wife does not make the payment referred to in order 1 herein, by the due date, then each of the husband and the wife shall do all things required to sell the property at D Street, Suburb E and to disburse the proceeds of sale in the following manner and priority:

   (a)       In payment of the costs of sale, including but not limited to rate adjustments, agents commission, advertising and solicitor’s costs;

   (b)       In payment of the sum of $100,000 to the husband by way of interim property settlement;

   (c)       In payment of the sum of $100,000 to the wife by way of interim property settlement;

   (d)       In payment of the balance remaining to a controlled money account held on behalf of the parties by the solicitors for the husband and the wife jointly, pending the determination of the substantive proceedings or further order of the Court.

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 Peroni & Kappa 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 SYDNEY

FILE NUMBER: SYC 5788 of 2015

Mr Peroni

Applicant

And

Ms Kappa

Respondent

REASONS FOR JUDGMENT

1. Mr Peroni (“the husband”) is the applicant for an interim order for property settlement arising out of substantive proceedings for property settlement, in which Ms Kappa (“the wife”) is the respondent.

2. The husband seeks an order for the sale of a jointly owned, unencumbered investment property at D Street, Suburb E (“the subject property”) and the payment of $100,000 to each of the husband and the wife, the balance to be held pending determination of the substantive proceedings.

3. The wife opposes the application. It is her case that she wishes to retain the property.

4. The husband’s application is made pursuant to s 79 of the Family Law Act 1975 (Cth).

5. For the purpose of this application it is agreed that the net asset pool of the parties is worth about $3,000,000. The substantial assets in the pool are the subject property, the former matrimonial home at B Street, Suburb C (“Suburb C”) and a two-thirds interest owned by the wife in a third property at D Street, Suburb E (“D Street”).

6. The wife, in her Response in the substantive proceedings, seeks orders that she retain all three properties and pay the husband $400,000.

7. The parties married and commenced to live together in 1991. At the time, the wife owned a two-thirds interest in D Street, her parents holding the remaining one-third share. The husband had no significant assets. They were both working.

8. The parties lived at D Street for some time. The husband asserts that they moved into the former matrimonial home at Suburb C when it was purchased in 2000. The wife’s father asserts that they lived at D Street until 2004. That issue cannot be resolved here.

9. They have two adult children.

10. There is a dispute between the husband and the wife as to the amount of financial assistance given to them by the wife’s parents during the marriage.

11. In 1992, the husband and the wife purchased an investment property in Suburb F for $170,000. The wife’s father deposed that he lent the parties $75,000 towards the purchase. The husband does not acknowledge that asserted loan. That property was sold in 1999 for $212,000 and the husband deposed that the parties received about $117,000. I infer that the money advanced by the wife’s parents was repaid to them. There is no other explanation for the disposition of the sale proceeds.

12. In 1999 the parties purchased vacant land at Suburb G. The husband admits to some assistance from the wife’s parents. The wife’s father does not assert that he provided any assistance towards the purchase of Suburb G.

13. Suburb G was sold and the proceeds applied either to the purchase of Suburb C for $395,000 or to reduce the mortgage over Suburb C. It is not possible on the evidence to determine which.

14. The wife’s father asserts that in 2000, he and his wife advanced $307,000 to the husband and the wife to purchase Suburb C. There is a dispute about this asserted advance. The husband alleges that the wife’s parents paid the deposit only, which I assume would have been about $39,500.

15. The husband and the wife borrowed $206,000 by way of mortgage secured over Suburb C. If the husband and the wife had the proceeds of sale of Suburb G and a mortgage of $206,000, it is difficult to understand why there would have been an advance of $307,000 from the wife’s parents to purchase a property for $395,000. That issue cannot be determined here.

16. Also in about 2000, the husband received a common law compensation award of about $167,000 following an accident. He asserts that he applied that money towards renovating Suburb C.

17. In 2000 the husband sold his business and started working as a tradesman.

18. In 2003, the husband and the wife purchased the subject property for $490,000. The husband asserts that the wife’s parents paid the deposit. He asserts that the balance of the purchase price came from savings and a mortgage with RAMS. He asserts that the mortgage was ultimately refinanced and secured over Suburb C.

19. The wife’s father asserts that his wife sold property in Europe and that money was used by the husband and the wife to purchase the subject property.

20. The wife’s father asserts that a total of $612,000 was lent to the husband and the wife.  

21. If that amount is correct, then the amount advanced for the purchase of the subject property could not be more than $305,000 and the balance must have come from the husband and the wife, either from their savings or by mortgage. That issue cannot be determined here.

22. The husband admits advances from the wife’s parents totalling $200,000.

23. The wife’s father claims that he made a further contribution to the finances of the husband and the wife in that he allowed them to live at D Street between 1991 and 2004. He estimates the value of that contribution at $300 per week or $202,800. Setting aside for one moment the dispute over when the parties left D Street, the difficulty with that proposition is that the wife owned two-thirds of D Street. The wife deposed that she contributed to the deposit on D Street and paid the mortgage over that property. Again, that issue cannot be resolved here.

24. In 2005 the parties separated but they remained living in Suburb C. The husband deposed that, at all times, he was responsible to pay the mortgage over Suburb C and that he continued to pay the household bills.

25. The parties were divorced on 11 December 2015.

26. Pursuant to orders made in the Federal Circuit Court on 21 July 2016, the husband vacated Suburb C and the wife paid him $100,000 by way of interim property settlement.

27. The husband applied only $30,000 of that sum to his legal fees and spent the rest.

28. He now asks the Court for another $100,000.

29. If the Court is confident that the payment to the husband of $100,000 would not exceed the amount which he would be likely to receive in the final determination, and there exists a fund or means by which the amount can be paid, the manner in which he used or intends to use the funds is not relevant.

30. The wife, by her Response, concedes that the husband will receive not less than $400,000. She cannot argue that payment to him of a total of $200,000 would result in an injustice or the funds needing to be recovered.

31. The orders sought in the wife’s Response would result in a payment to the husband of about 13 per cent of the net assets after a marriage of some 24 years in which two children were parented and the husband worked in paid employment for the whole period. Although the parties separated in 2005 and remained living under the same roof, the husband, on his evidence, continued to contribute his income to the family and the maintenance of their property.  

32. The wife deposed, in her Financial Statement sworn on 5 April 2017, that she has an income of $200 per week and expenses of $18,140 a week. I suspect that the estimate of her expenses is not accurate. I accept that her expenses are at least $640 per week.

33. The mortgage over Suburb C is currently $300,000. If the wife is to pay the husband $400,000 to retain all of the real estate, she will have to borrow a total of at least $700,000. Counsel for the wife was unable to explain to the Court how that might be feasible.

34. The most likely outcome of the substantive proceedings is that some or all of the real estate will have to be sold.

35. It is highly likely that the subject property will have to be sold.

36. However, the wife asks the Court to give her the opportunity to raise $100,000 to pay to the husband by way of interim property settlement. If she is unable to raise $100,000 within 28 days, she accepts that the subject property will be sold.

37. The Orders will allow her that opportunity.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 August 2017.

Associate:

Date:  17/8/2017