Shamon & Shamon
[2022] FedCFamC1F 323
•13 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon [2022] FedCFamC1F 323
File number(s): SYC 2375 of 2021 Judgment of: REES J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the wife to join the husband’s sister to the proceedings – Joinder application granted – Orders for the second respondent to withdraw the caveat lodged over the matrimonial home – Orders for $250,000 to be held in a controlled monies account to cover the second respondent’s claimed sum pursuant to a loan agreement. Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 13 May 2022 Place: Sydney Counsel for the Applicant: Mr Elachkar Solicitor for the Applicant: Lawrbidge Legal and Mediation Services Solicitor for the First Respondent: Barkus Doolan Counsel for the Second Respondent: Ms Coulton Solicitor for the Second Respondent: Origin Lawyers ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
First Respondent
MS G SHAMON
Second Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS:
1.That Ms G Shamon be joined as a party to these proceedings.
2.That Ms G Shamon forthwith do all things required to remove the caveat lodged by her over the title of the property at 2 M Street, Suburb P NSW (“Suburb P”).
3.That upon settlement of the sale of Suburb P, the proceeds of sale be disbursed in the following manner and priority:
(a)To discharge the mortgage to the Commonwealth Bank.
(b)To pay the agent’s commission and the costs of the sale.
(c)To pay to a controlled monies account held by the wife’s solicitors in the name of Ms G Shamon the sum of $250,000, such funds not to be disbursed other than by order of the Court.
(d)To pay to the wife the sums specified in Orders 3 (d) and (e) and Order 6 made on 26 November 2021.
(e)To pay the balance then remaining into a controlled monies account held by the wife’s solicitors in the joint names of the husband and the wife.
4.That the second respondent file and serve any written submissions in relation to the costs of this application not later than 4.00 pm on 27 May 2022, noting that the issue of costs will be determined in chambers.
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 Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 22 June 2021, McClelland DCJ ordered, inter alia, that Mr Shamon (“the husband”) pay to Ms Shamon (“the wife”) the sum of $80,000 by way of litigation funding and that he also pay her, by way of spousal maintenance, the sum of $772 per week.
The husband has not complied with those orders.
On 26 November 2021, the following further orders were made:
1.The orders of Deputy Chief Justice McClelland of 22 June 2021 remain in full force and effect.
2.The Husband comply with Orders 5 and 6 of those Orders (including bringing his obligation to pay spousal maintenance up to date) by 4pm on 26 December 2021.
3.That, in the event the Husband does not comply with Order 2, the Wife forthwith be appointed trustee for sale of the property situated at Mr Shamon, Suburb P NSW and upon completion of the sale, the proceeds of sale be applied by the Wife as trustee in the following order and priority:
a.Payment of the amount required to discharge the mortgage registered on title in favour of the Commonwealth Bank of Australia;
b.$210,000 to be paid into a controlled monies account in the name of the Wife and the Husband to be operated by the Solicitors for the Wife pending determination of any claim to such sum by or on behalf of the Husband’s sister, [the second respondent], pursuant to the contended agreement of 11 August 2020 between [the second respondent] and the Husband;
c.Payment of agent’s commission and marketing expenses of the sale, with adjustments to be made for any costs incurred by the wife in her capacity as trustee for the sale;
d.$80,000 to be paid to the Solicitors for the Wife in litigation funding pursuant to Order 5 made by Deputy Chief Justice McClelland on 22 June 2021 with interest added thereon for the period 22 July 2021 to the date of these Orders, as prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
e.$12,352 of unpaid Spousal Maintenance accrued to date together with such further arrears that may accrue until the property is sold;
f.The balance of the proceeds of sale to be deposited into a controlled monies account in the name of the Wife and the Husband to be operated by the Solicitors for the Wife.
4.In the event the spousal maintenance payable to the Wife pursuant to the Orders of 22 June 2021 falls into arrears for 14 or more days, the Wife be at liberty to seek payment of those arrears from the controlled monies account referred to in Order 3(f) herein.
5.The Application in a Case filed by the [husband] on 7 September 2021 and the Response to an Application in a Case filed by the [wife] on 13 November 2021 are otherwise dismissed.
6.Within 30 days from the date of this Order, the Husband is to pay the Wife’s costs fixed in the sum of $15 000.
…
Pursuant to those orders, the wife, as trustee for sale, sold the property at Suburb P by public auction on 19 March 2022 for $1,345,000 with settlement scheduled to occur on 17 May 2022.
A caveat has been lodged over the title of the Suburb P property by the husband’s sister, Ms G Shamon, (“the second respondent”) who claims $240,000.
The wife now seeks orders joining the second respondent as a party to these proceedings; for the caveat to be removed and for the sum of $240,000 to be held in a controlled monies account pending the determination of the claim of the second respondent, which the wife disputes.
This is a matter where the wife asserts that the husband has alienated significant property by borrowing from family members, including the second respondent, and by transferring to other family members his interest in other entities and property.
The ambit of that dispute, and the competing allegations of the husband and the wife, are set out in detail in the judgment of McClelland DCJ and are not repeated here. It is sufficient to say that the wife has established that there is a serious issue to be tried in relation to the husband’s alienation of assets.
The asserted debt owed by the husband to the second respondent is one of the transactions which the wife impugns.
The second respondent claims to be owed $222,340.90 including compounded interest to the end of June 2022. The wife proposed to set aside $240,000 in a controlled monies account to cover the amount claimed and future interest. Since I cannot predict when the matter will be finally determined, I will order that $250,000 be set aside. The wife did not oppose that course.
Since the term of the alleged loan was for 10 years and the Deed of Loan is dated 11 August 2020, it cannot be asserted that the second respondent is out of pocket. She could not have expected payment of the principal sum before 2030.
The issue of the costs of the application will be determined in chambers after the second respondent has had the opportunity to file written submissions.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 13 May 2022
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