SALEEBA & MOON (AS EXECUTOR FOR THE ESTATE OF THE LATE MS LAMBROS) - [2015] FamCA 43

FAMILY COURT OF AUSTRALIA

SALEEBA & MOON (AS EXECUTOR FOR THE ESTATE OF THE LATE MS LAMBROS)

[2015] FamCA 43

FAMILY LAW – ENFORCEMENT OF ORDERS – Property orders – Where a Federal Magistrate made consent orders – Where the husband wishes to have those consent orders set aside – Where the mother has died – Whether there was a miscarriage of justice by reason of the making of the consent property orders – Section 79A(1)(a) – Whether there are circumstances of an exceptional nature – Whether the husband will suffer hardship of a serious nature if the orders are not set aside – Where the husband’s application is dismissed.

Family Law Act 1975 (Cth) ss 79A(1)(a), 79A(1)(d)
Succession Act 2006 (NSW)

Harris v Caladine (1991) 14 Fam LR 593; (1991) 172 CLR 84; [1991] HCA 9
Inthe Marriage of J W and A M Gebert (1990) 14 Fam LR 62
In the Marriage of Holland (1982) 8 Fam LR 233; [1982] FLC 91 – 243
Smith and Smith (1984) FLC 91-512 at 79,165
Redman and Redman [2013] FamCAFC 183
Simpson and Hamlin (1984) 9 FamLR 1040
Public Trustees Executor of the Estate of the Late Ross George Gilbert & Cheryl Ann Gilbert (1991) FLC 92-211; 14 Fam LR 573

APPLICANT:

Mr Saleeby

RESPONDENT:

Ms Moon (as executor of the estate of the late Ms Lambros)

FILE NUMBER:

PAC

5308

2010

DATE DELIVERED:

3 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

21 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Barraket Stanton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Flaherty

SOLICITOR FOR THE RESPONDENT:

Boyd Lawyers

Orders

That the husband’s Initiating Application filed on 25 March 2014 is dismissed.
That the husband attend an enforcement hearing and produce the documents listed below:
(a)Income tax returns of the respondent for the financial years ending 30 June 2012 and 30 June 2013.
(b)Income tax returns and financial statements of S International Pty Ltd for the financial years ending 30 June 2012 and 30 June 2013.
(c)All home loan statements for the previous 2 years to date in respect to the property at I Street, Suburb P, NSW, being St George Bank limited account number …100 (BSB …).
(d)All credit card statements for the period 1 July 2012 to date for the respondent’s credit card accounts (14 accounts) as listed at item 30 of the respondent’s financial statement filed in these proceedings on 25 March 2014.
(e)An inventory of the “fine artwork” listed at item 43 of the respondent’s financial statement filed in these proceedings on 25 March 2014, including the nature of each piece of artwork, the name of the artist and the value of each piece of artwork, together with any appraisals or valuations for the said “fine artwork”.
(f)Any hire purchase agreements or lease agreement entered into between the respondent and Mercedes-Benz Financial Services Australia Pty Ltd (and/or Mercedes Benz Finance Australia Pty Ltd) in respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SALEEBA & MOON (AS EXECUTOR FOR THE ESTATE OF THE LATE MS LAMBROS) [2015] FamCA 43
Case: [2015] FamCA 43
Decision Date: 3 February 2015

CaseChat Overview and Summary

This matter concerned an application by the husband, which was dismissed by Aldridge J. The court also made orders requiring the husband to attend an enforcement hearing and produce a comprehensive list of financial documents and information, including income tax returns, financial statements for a company, home loan and credit card statements, an inventory of artwork with valuations, hire purchase agreements for a Mercedes-Benz vehicle, and documents relating to the sale and purchase of a property.

The court was required to determine the husband's obligations regarding the disclosure of financial information and the disposition of a property. The orders indicate a dispute concerning financial matters, likely within the context of family law proceedings, given the nature of the documents sought and the subsequent orders regarding property sale.

Aldridge J ordered that the husband's initiating application be dismissed. Crucially, the court directed the husband to facilitate the sale of a property located at D Street, Suburb A, by executing a Memorandum of Transfer within seven days. The respondent was granted sole authority to sell the property, including selecting an agent and determining the sale price. The husband was ordered to do all things reasonably necessary to assist in the sale. In the event of the husband's refusal or neglect to comply, the Registrar of the Court was appointed to execute necessary documents. The net proceeds of the sale, after deducting mortgage payments, agent fees, and legal costs, were to be paid to the respondent. The court also made notations regarding payments to the National Australia Bank, preserving the respondent's rights to enforce prior court orders and seek reimbursement from the husband. All other applications and cross-applications were dismissed, and all issues were removed from the Active Pending Cases List.

Orders

Orders of the court

That the husband’s Initiating Application filed on 25 March 2014 is dismissed.

That the husband attend an enforcement hearing and produce the documents listed below:

(a) Income tax returns of the respondent for the financial years ending 30 June 2012 and 30 June 2013.

(b) Income tax returns and financial statements of S International Pty Ltd for the financial years ending 30 June 2012 and 30 June 2013.

(c) All home loan statements for the previous 2 years to date in respect to the property at I Street, Suburb P, NSW, being St George Bank limited account number …100 (BSB …).

(d) All credit card statements for the period 1 July 2012 to date for the respondent’s credit card accounts (14 accounts) as listed at item 30 of the respondent’s financial statement filed in these proceedings on 25 March 2014.

(e) An inventory of the “fine artwork” listed at item 43 of the respondent’s financial statement filed in these proceedings on 25 March 2014, including the nature of each piece of artwork, the name of the artist and the value of each piece of artwork, together with any appraisals or valuations for the said “fine artwork”.

(f) Any hire purchase agreements or lease agreement entered into between the respondent and Mercedes-Benz Financial Services Australia Pty Ltd (and/or Mercedes Benz Finance Australia Pty Ltd) in respect to motor vehicle registration number …, and in respect to any other Mercedes-Benz motor vehicle for the period 1 July 2012 to date.

(g) All documents relating to the sale and purchase of C Street, Suburb B by the respondent solely or jointly with any other party, including any corporate entity of which the respondent is a director and/or shareholder.

That, within seven (7) days of these Orders, the husband is to deliver to the respondent a Memorandum of Transfer (in registrable form) duly executed by the husband as “transferor” of his interest in the property known as D Street, Suburb A (“the property”).

That the respondent is to have sole right, power and responsibility to sell the property including the sole right to select and engage a selling agent of the property and the sole right, power and responsibility to determine the sale price of same.

That the husband is to do all things reasonably necessary to facilitate the sale of the property by the respondent (including signing all documents and instruments reasonably necessary to facilitate such sale) at the price determined by the respondent.

That in the event that the husband refuses or neglects to execute any deed or instrument necessary to give effect to all or any of these orders that the Registrar of the Court at Sydney be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of the husband and do all other acts and things necessary to give validity to the said deed or instrument.

That the whole of the net proceeds of sale of the property be paid to the respondent. For the purposes of this order “Net proceeds” means the whole of the sale price less:

(i) Amounts due and payable to National Australia Bank Limited pursuant to mortgage … secured over the property.

(ii) The costs, fees and disbursements of any real estate agents engaged by the respondent to assist in the sale of the property.

(iii) Legal costs reasonably incurred by the respondent as a result of the sale of the property.

Notation to the effect that any payment of monies paid to the National Australia Bank Limited from the sale of the property by the respondent are without prejudice to her entitlement to enforce the orders made in the Federal Magistrates Court at … in proceedings File No. PAC 5308/2010 on 16 July 2012 and without prejudice to the respondent’s right to obtain reimbursement for such payment or payments from the husband.

That all applications and cross applications be and are hereby dismissed.

10.

That all issues be removed from the Active Pending Cases List.

11.

That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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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