SAIJEL & YEETUL

[2013] FamCA 305

FAMILY COURT OF AUSTRALIA

SAIJEL & YEETUL [2013] FamCA 305

FAMILY LAW – ORDERS – Various property orders sought by wife – No appearance by husband – Held that husband had appropriate notice of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Saijel

RESPONDENT: Mr Yeetul

FILE NUMBER: SYC 7541 of 2012

DATE DELIVERED: 20 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 20 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The Court notes that it is satisfied that the husband has had appropriate notice of these proceedings.

1. I note that I shall make orders in this matter subject to receiving the written undertaking by the wife within 48 hours.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saijel & Yeetul has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7541 of 2012

Ms Saijel

Applicant

And

Mr Yeetul

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application by the wife for a number of orders designed firstly to enable her to reduce the costs of a mortgage over one of the parties’ properties and to seek to enforce payment of the rent in relation to the other property.  The wife also seeks orders seeking to restrain the husband from dealing with the assets in a number of ways and to have the registrar sign a number of documents that the orders otherwise require the husband to sign.

3. The two properties are the home at B Street, Suburb E (“the Suburb E property”) and C Street, Suburb J (“the Suburb J property”).  The Suburb E property is currently mortgaged with the monthly repayments of some            $9 773.00.  The bank has agreed to reduce that mortgage by some $3 077.73 per month but requires the husband to sign an appropriate loan conversion form.  The wife proposes, if that order is made, to let out that property and use the rent primarily for maintaining the mortgage.

4. The wife does not otherwise have the funds to maintain that mortgage and if she was the person required to do so, it would not be met and it is likely that the bank would sell the property.  The evidence of the wife is that they had a number of businesses together over the years but that the husband has not since September of last year, when he left the matrimonial home, had any direct communication with his wife.  She suspects that he is in China.  For some time the wife’s solicitor was in correspondence with Webster Evans, who subsequently informed the wife’s solicitor on 21 November 2012 that the correspondence from the wife’s solicitor had been forwarded by them to the husband but they had not received any response.

5. It is apparent from an email sent on 20 November 2012 that the husband is receiving and sending emails but has not responded to the correspondence from his solicitor.  These proceedings were before the court on 7 February 2013 when Registrar George conducted a case assessment conference.  The husband was represented by a solicitor.  Registrar George noted that the husband is in China and has not completed responding documents and that the husband’s solicitors can contact him in China by email or telephone.

6. Registrar George ordered that the wife’s Application in a Case, filed on 14 December 2012, be listed today on 20 February 2013.  Those solicitors acting for the husband filed a Notice of Ceasing to Act.

7. I am satisfied therefore that the husband has appropriate notice of today’s proceedings.  I am also satisfied that he is not responding to appropriate requests for the property to be dealt with and that the wife needs to do something to preserve the property.  The wife initially sought an order that the home be transferred to her but she now accepts the position that it is appropriate simply that the property be let and the proceeds used to pay the mortgage and in due course there be an appropriate accounting.

8. It seems to me that it is in the interests of the parties to preserve the home that the loan conversion document be signed and that the husband be ordered to sign it and if he does not, for the registrar to sign it in his absence, and the same applies to a lease.

9. The husband and the wife were directors of a company called D Pty Ltd.  It is the trustee of a family trust of which the husband is the sole appointor.  The major asset of that trust comprise the property at Suburb J, worth some $1.25 million, which is subject to a mortgage in favour of HSBC for just over $1 million but also holds some shares.  In early December 2012, the wife received a letter from the St George Bank advising that the last mortgage payment had not been met due to insufficient funds.

10. The wife no longer has access to that account and cannot see whether or not the rent is continuing to be paid as the property is let and if so, what is happening to those rental payments.  She seeks an order that the husband do all acts and things in his personal capacity as an office-holder in D Pty Ltd to cause any rental payments in relation to the Suburb J property to be paid to St George Bank.  I think it means paid by St George Bank in respect to the registered mortgage.  That is an appropriate order to make.

11. The parties are also shareholders and directors in the company of F Australia Pty Ltd and the husband is also the sole shareholder of a company called F International Pty Ltd, which is registered in Hong Kong.  The wife asserts that she has been wrongfully removed as a director of that company and sought an order that in effect the husband be ordered to sign all such documents as are necessary to reinstate her.  I indicated that I was not prepared to make that order as that order and also the order that was sought seeking rectification of the share register were inappropriate orders to make as interim orders. 

12. The wife does seek an order, however, that the husband comply with any obligations on the group of companies to file tax returns of F and as trustee of the superannuation fund and I will make that order.  But I will not order the registrar to sign those documents if they are not executed by the husband as ordered, because it seems to me they may well require information to be provided by the husband, which would not be available to the registrar.

13. The wife also seeks an order that the husband sign a document that would enable her to access the bank statements in relation to the HSBC and St George accounts, which I think is appropriate.  She also seeks an order restraining the husband from dealing with funds and a number of bank accounts or altering or dealing with the assets of the company or the trust until further order.  Again, I think they are appropriate.

14. Finally, as I said, the Suburb J property is let.  If it remains let, the rent can be used to reduce the mortgage.  However, in the event that the rent ceases to be paid, the wife seeks to have exclusive occupation of that property, to reside there and to be responsible for the mortgages and outgoings and it seems to me that that is a sensible way of preserving the property in the interim.  So I will proceed to make the appropriate orders in relation to this matter.

15. I will make the orders in accordance the document “Minute of Orders Sought” by the wife filed in court today with amendments.

16. The wife is to keep proper accounts of the receipts and payments relating to this property and to make them available to the husband upon request. 

17. Subject to alterations, I will make those orders pursuant to the document “Minute of Orders Sought” by the wife filed in court today and subject to the wife filing a written undertaking as to damages within 48 hours.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 20 February 2013.

Associate: 

Date:  8 May 2013