FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADEL & RADEL | [2019] FCCA 3115 |
| Catchwords: FAMILY LAW – Property – default orders. FAMILY LAW – Costs. |
| Legislation: Family Law Act 1975, s.117 |
| Cases cited:: Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS RADEL |
| Respondent: | MR RADEL |
| File Number: | BRC 1099 of 2010 |
| Judgment of: | Judge Spelleken |
| Hearing date: | 22 October 2019 |
| Date of Last Submission: | 22 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Biggs of Biggs Fitzgerald Pike |
| The Respondent appeared on his own behalf |
ORDERS
Real Property
That the wife retain for her sole use and benefit absolutely all her right, title to and interest in the real property situated at A Street, Suburb B.
That within thirty (30) days of the date of this Order the wife transfer to the husband all her right, title to and interest in the former matrimonial home situated at C Street, Suburb D in the State of Queensland, more particularly described as Lot … on RP …, Title Reference … (‘the former matrimonial home’).
That contemporaneously with and in consideration for the transfer referred to in Order 2 above:
(a)The husband pay to the wife (by way of payment to the Trust Account of Biggs Fitzgerald Pike Solicitors) the sum of $685,000.00; and
(b)The husband pay by way of refinance or otherwise the loan to the husband and wife from Commonwealth Bank secured by way of first registered Bill of Mortgage over the former matrimonial home, such that the wife is released from all liability she has to the Commonwealth Bank under the terms of the loan secured by such mortgage.
That within fourteen (14) days of the date of this Order the husband do all things and sign all documents necessary to transfer to the wife all his right, title to and interest in the real property situated at E Street, Suburb F, in the State of Queensland more particularly described as Lot … on SP …, Title Reference ….
That pending the Transfer referred to in Order 3 above, the husband be and is hereby restrained from selling, transferring or otherwise alienating from himself or encumbering his interest in the property at E Street, Suburb F in the State of Queensland.
The Company and Trust
That the husband retain for his sole use and benefit absolutely all his right, title to and interest in V Pty Ltd and all his right, title to and interest in the Radel Family Trust.
That the Husband indemnify the Wife and keep her indemnified against:
(a)Any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the husband and/or V Pty Ltd and/or Radel Family Trust now has or may have at any time or times after the date of these Orders against the wife…
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- AGLC
- RADEL & RADEL [2019] FCCA 3115
- Case
- [2019] FCCA 3115
- Decision Date
CaseChat Overview and Summary
The court was required to determine the division of various assets, including real property, a company, a trust, shares, bank accounts, motor vehicles, and superannuation entitlements. The court also needed to address the issue of costs.
The court's reasoning and the legal principles applied are reflected in the detailed orders made. These orders effect a division of property, with specific provisions for the transfer of interests in real estate, company shares, and other assets. The husband was ordered to pay a significant sum to the wife in consideration for the transfer of the former matrimonial home and to indemnify the wife against liabilities arising from the company and trust. The court also made specific orders regarding the division of superannuation entitlements pursuant to section 90XT of the *Family Law Act 1975*.
The court ordered that the husband pay the wife's costs fixed at $7,400.00, to be paid contemporaneously with a property transfer. Provisions were made for the appointment of a Registrar to execute documents in the event of a party's default, and for liberty to apply regarding the implementation or enforcement of the orders. All outstanding applications were dismissed.
Orders
Orders of the court
Real Property
1.
That the wife retain for her sole use and benefit absolutely all her right, title to and interest in the real property situated at A Street, Suburb B.
2.
That within thirty (30) days of the date of this Order the wife transfer to the husband all her right, title to and interest in the former matrimonial home situated at C Street, Suburb D in the State of Queensland, more particularly described as Lot … on RP …, Title Reference … (‘the former matrimonial home’).
3.
That contemporaneously with and in consideration for the transfer referred to in Order 2 above:
(a) The husband pay to the wife (by way of payment to the Trust Account of Biggs Fitzgerald Pike Solicitors) the sum of $685,000.00; and
(b) The husband pay by way of refinance or otherwise the loan to the husband and wife from Commonwealth Bank secured by way of first registered Bill of Mortgage over the former matrimonial home, such that the wife is released from all liability she has to the Commonwealth Bank under the terms of the loan secured by such mortgage.
4.
That within fourteen (14) days of the date of this Order the husband do all things and sign all documents necessary to transfer to the wife all his right, title to and interest in the real property situated at E Street, Suburb F, in the State of Queensland more particularly described as Lot … on SP …, Title Reference ….
5.
That pending the Transfer referred to in Order 3 above, the husband be and is hereby restrained from selling, transferring or otherwise alienating from himself or encumbering his interest in the property at E Street, Suburb F in the State of Queensland.
The Company and Trust
6.
That the husband retain for his sole use and benefit absolutely all his right, title to and interest in V Pty Ltd and all his right, title to and interest in the Radel Family Trust.
7.
That the Husband indemnify the Wife and keep her indemnified against:
(a) Any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the husband and/or V Pty Ltd and/or Radel Family Trust now has or may have at any time or times after the date of these Orders against the wife or which may arise in respect of any act or thing done or omitted to be done by the wife up to and including the date of the making of these Orders whether by reason of the wife having been an employee and/or director and/or officer and/or trustee of the entities referred to in this Order and/or by reason of her shareholding within the entities referred to in this Order and/or any loan account in her name and/or the receipt by her of any monies at any time from the entities referred to in this Order;
(b) Any liability arising under any guarantee given by the wife in respect of any monies advanced or any credit accommodation given to any entities referred to in this Order by any bank or other financial institution;
(c) Any liability for GST, CGT, group tax, PAYG tax, company tax, land tax, superannuation contributions payable for employees of the entities referred to in this Order, debts, claims, actions, demands and choses in action brought by any creditor thereof; and
(d) Any taxation liability of the wife assessed or assessable and remaining unpaid in respect of any payments or distributions made to her by any of the entities referred to in this Order, including but not limited to V Pty Ltd and Radel Family Trust.
Shares
8.
That the wife retain for her sole use and benefit absolutely the shares which she currently owns in W Shares.
9.
That the husband retain for his sole use and benefit absolutely the shares which he currently owns in the X Shares and J Shares.
10.
That the wife transfer to the husband all her right, title to and interest in the jointly owned units in Y Property Group, contemporaneously with and in exchange for the payment to the wife referred to in Order 3(a) above.
11.
That within fourteen (14) days of the date of this Order the husband do all things and sign all documents as may be necessary to transfer to the wife all his right, title to and interest in the jointly owned K Shares, including but not limited to:-
(a) Executing a share transfer form with respect to the shares; and/or
(b) Executing any authority directed to Link Market Services to provide the wife with the Security Holder Reference Number for such shareholding.
12.
That pending the transfer referred to in Order 11 above, the husband be and is hereby restrained from selling, transferring or otherwise alienating from himself any interest he has in the jointly owned K Shares.
Bank Accounts
13.
That the wife retain for her sole use and benefit absolutely the following bank accounts:-
(a) Commonwealth Bank Account No. …;
(b) Commonwealth Bank Account No. …;
(c) Commonwealth Bank Account No. …;
(d) ING Bank Term Deposit;
(e) Commonwealth Bank Term Deposit Account No. …;
14.
That the husband retain for his sole use and benefit absolutely his interest in the following bank accounts:-
(a) Husband’s Suncorp Account No. …;
(b) Husband’s Suncorp Account No. ….
Motor Vehicles
15.
That the wife retain for her sole use and benefit absolutely and the husband transfer to the wife all his right, title to and interest in the Motor Vehicle L currently in the wife’s possession.
16.
That the husband retain for his sole use and benefit absolutely all his right, title to and interest in the Motor Vehicle M utility motor vehicle currently in his possession.
Superannuation
17.
That pursuant to s90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in Super Fund Z, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $300,000.00 and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
18.
That Order 17 above has effect from the operative time and the operative time for the purposes of Order 17 above is four (4) business days after the date of service of a copy of these Orders upon the Trustee of Super Fund Z.
19.
That until such time as the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account for the wife:-
(a) The husband provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in Super Fund Z.
(b) By this Order, the husband directs and authorises the Trustee of Super Fund Z to communicate with the wife and/or her legal representative:-
(i) To answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in Super Fund Z; and
(ii) To provide to the wife and/or her legal representative a copy of any notice of any Application or request by the husband which seeks release of entitlements in Super Fund Z insofar as that release may affect the wife’s entitlement in Super Fund Z pursuant to these Orders.
(c) The husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in Super Fund Z to which she is entitled pursuant to these Orders.
General
20.
That except as otherwise provided in this Order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including (but not limited to) money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
21.
That the parties do all acts and things necessary and give all consents and execute all documents and writing to give effect to these Orders in the time periods prescribed.
22.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then a Registrar of this Honourable Court is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
23.
That the parties agree that it shall be sufficient evidence of a default in signing a necessary document or instrument as referred to above if the party requiring it to be executed forwards it to the other party (or the Solicitors who act for the other party in the making of these Orders) and within seven (7) days thereof the document or instrument is not properly executed and returned to the party requiring its execution.
24.
That the husband pay the wife’s costs fixed in the sum of $7,400.00 such payment to be made contemporaneously with the transfer referred to in Order 2 above.
25.
That each party have liberty to apply upon the giving of seven (7) days written notice one to the other with respect to the implementation of and/or enforcement of these Orders.
26.
That all outstanding applications be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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