Velten & Velten

Case [2020] FamCA 384


FAMILY COURT OF AUSTRALIA

VELTEN & VELTEN [2020] FamCA 384

FAMILY LAW – PRACTICE AND PROCEDURE – INTERIM DISCOVERY – unsatisfactory nature of respondent’s discovery – consequences of unsatisfactory discovery.

FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM – orders made.

FAMILY LAW – VALUATIONS – orders made.

Biosecurity Act 2015 (Cth)
Corporations Act 2001 (Cth) s 181
Family Law Act 1975 (Cth) ss 72, 74, 75, 77
Family Law Rules 2004 (Cth) ch 13, rr 13.04, 15.09(1)
A v A; B v B [2000] 1 FLR 701
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 332
Ashby v Slipper (2014) 219 FCR 322
Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297
Banks & Banks [2015] FamCAFC 36
Barker v Barker (2007) 36 Fam LR 650
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brewer & Brewer [2019] FamCA 247
Burns v Burns [2004] EWCA Civ 1258
Bacall & Zagar [2020] FamCA 350
Chang v Su (2002) 29 Fam LR 406
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Conrock Ltd v CSR Ltd [1990] FCA 312
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Flight v Q [1844] 50 ER 9
Giorginis v Kastrati (1988) 49 SASR 371
Girlock (Sales) Pty Ltd vHurrell (1982) 149 CLR 155
Goodridge v Beadle (2017) 57 Fam LR 425
Guild & Stasiuk [2020] FamCA 348
Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655
Hall v Hall (2016) 257 CLR 490
Holloway v McFeeters (1956) 94 CLR 470
In the Marriage of Black & Kellner (1992) 12 Fam LR 343
In the Marriage of Briese (1985) 10 Fam LR 642
In the Marriage of Chemaisse (1987) 11 Fam LR 392
In the Marriage of Efthimiadis (1993) 16 Fam LR 384
In the Marriage of Giunti (1986) 11 Fam LR 160
In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419
In the Marriage of Howard (1982) 8 Fam LR 441
In the Marriage of Kannis (2002) 30 Fam LR 83
In the Marriage of Malpass & Mayson (2000) 27 Fam LR 288
In the Marriage of Marinko (1983) 8 Fam LR 849
In the Marriage of Marinko (Family Court of Australia, Nygh J, 29 October 1982)
In the Marriage of Mezzacappa (1987) 11 Fam LR 957
In the Marriage of Monte [1986] FamCA 1
In the Marriage of Monte [1986] FamCA 1.
In the Marriage of Morrison (1994) 18 Fam LR 519
In the Marriage of Nolan and Ingram (1984) 9 Fam LR 808
In the Marriage of Norbis(1986) 10 Fam LR 819
In the Marriage of P & P (1985) 9 Fam LR 1100
In the Marriage of Radwan (1985) 11 Fam LR 1
In the Marriage of Redman and Redman (1987) 11 Fam LR 411
In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener) (1989) 96…

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AGLC
Velten & Velten [2020] FamCA 384
Case
[2020] FamCA 384
Decision Date

CaseChat Overview and Summary

In *Velten & Velten*, heard by Wilson J, the dispute concerned interim discovery and spousal maintenance in family law proceedings. The wife sought orders for interim discovery from the husband, alleging his discovery was unsatisfactory, and also sought orders for spousal maintenance and valuations of certain business interests.

The court was required to determine the extent of the husband's obligations regarding discovery, particularly in light of previous orders and requests made by the wife's solicitors. Additionally, the court needed to consider the appropriate orders for interim spousal maintenance and the valuation of the parties' interests in the "Velten Group," which comprised the Mr Velten Family Trust and F Pty Ltd.

Wilson J ordered the husband to pay the wife $200,000 by a specified date, discharging previous orders relating to this payment. To facilitate this payment, the husband was directed to sell specific assets, including a houseboat, mooring permit, classic motor vehicle, speedboat, and jet ski. The wife was granted sole conduct of these sales, with liberty to appoint selling agents and determine sale terms, including price, subject to keeping the husband informed. The proceeds of these sales were to be applied first to sale costs, then to any outstanding amount of the $200,000 payment, and finally, the remaining balance was to be held pending agreement or further order. The husband was also ordered to provide further discovery by specific dates and to jointly instruct a single expert to value the Velten Group at 31 December 2019, with specific parameters for the valuation. Further orders addressed the payment of outstanding accounts, the provision of a credit card for the wife's use, the application of funds from a trust account, and the suspension of mortgage repayments.

Orders

Orders of the court

1.

By 4pm on 11 June 2020 the husband pay or cause to be paid to the wife the sum of $200,000.

2.

Paragraphs 3 – 5 inclusive of the orders made by Deputy Registrar George on 13 March 2020 are discharged.

3.

The husband and wife do all such acts and things and sign all such documents as may be required to meet the payment to the wife in paragraph 1 by forthwith selling the necessary assets including –

(a) the houseboat stored at B Street, C Town Victoria, owned by the husband;

(b) the mooring (permit) at BB Town Victoria;

(c) the classic motor vehicle owned by the husband;

(d) the speedboat registration …; and

(e) the jet ski registration … (the sales of items at subparagraphs (a) – (e) referred to together herein as the sales).

4.

The husband forthwith deliver up possession and control of each item in paragraph 3 to the wife including but not limited to providing the wife with keys and remotes, registration/ownership papers, any documents necessary to sell the items, and authorising unrestricted access to the items by the wife and her nominated agents for the purpose of inspection and sale of the items.

5.

The wife have sole conduct of each of the sales and for this purpose the wife be at liberty to appoint the selling agent and to determine the terms and conditions of each of the sales, including the sale price, on the basis that the wife keep the husband informed in relation to the Sales including providing him with copies of executed sale contracts and documents and particulars.

6.

Upon completion of the sales, the proceeds of the sales are to be applied in the following manner –

(a) first, to pay all costs, commissions and expenses of the sales;

(b) second, such amount of the payment provided for in order 1 to the wife as is outstanding at the date of completion of the Sales;

(c) third, the sum of $200,000 to the wife, to be paid care of her solicitor; and

(d) fourth, the balance to be held in an interest bearing controlled monies account in the joint names of the parties, such account to be established by the wife’s solicitor, pending written agreement between the parties or further order of the court.

7.

By 4pm on 21 May 2020 the husband provide the wife with discovery as follows –

(a) documents in accordance with order 10 of the orders made on 22 November 2019 (to the extent those documents have not already been provided);

(b) the documents requested in the letter from the wife’s solicitor to the husband’s solicitor dated 24 January 2020 (to the extent those documents have not already been provided); and

(c) the documents requested in the letter from the wife’s solicitor to the husband’s solicitor dated 6 February 2020 (to the extent those documents have not already been provided).

8.

By 4pm on 21 May 2020 the parties do all things necessary to jointly instruct the single expert appointed pursuant to order 6 of the orders made on 22 November 2019, Ms D of E Valuers, to value the parties’ interest in –

(i) the Mr Velten Family Trust; and

(ii) F Pty Ltd (together the Velten Group)

on the basis that –

(a) the valuation of the Velten Group be undertaken at 31 December 2019;

(b) each business be valued individually utilising inter alia income statements for the relevant business;

(c) the valuation include all businesses sold or otherwise disposed of by the husband or at his direction since 1 July 2019 in order to ascertain whether any such business has been sold or disposed of for fair market value or otherwise;

(d) the valuation include all businesses purchased, acquired or opened by the husband, or in which he has or has held any legal or beneficial interest, during the period 1 July 2019 to the date of these orders.

9.

By 4pm on 19 May 2020 the husband pay or cause to be paid any account or expense falling within the scope of orders 5 and 8 of the orders made on 22 November 2019 that is outstanding or overdue for payment as at the date of these orders, inclusive of arrears referrable to the payment plan for taxation owed or payable by the wife, and provide the wife with documentary evidence of each payment having been made.

10.

To facilitate the husband’s compliance with his obligations pursuant to the provisions of order 5 of the orders made on 22 November 2019, by 4pm on 21 May 2020 the husband –

(a) provide the wife with a credit card, with such card to be used by the wife solely for the purpose of meeting expenses in accordance with order 5 of the orders made on 22 November 2019, and the husband pay or cause to be paid the total outstanding amount on the credit card on or before the due date for payment each calendar month; and

(b) establish and thereafter maintain direct debits for the rates, insurances and utilities accounts (including gas, electricity, telephone and internet) referred to in order 5 of the orders made on 22 November 2019 so that all such expenses and accounts are paid by the due date for payment, and provide the wife with documentary evidence of each direct debit having been established.

11.

The monies standing in the KCL Law Trust Account in the sum of $50,000, being the remaining proceeds of sale of the business conducted by F Pty Ltd at Delacombe, be applied as follows –

(a) the sum of $8,317.80 to KCL Law, being monies owed to KCL Law to undertake all professional work in relation the sale of the said business; and

(b) the balance of $41,682.20 be paid to the business trading account of F Pty Ltd, with F Pty Ltd to apply the whole of the funds to pay outstanding creditors of F Pty Ltd, and with documentary proof of such payments to creditors to be provided to the wife’s solicitor within seven days of the relevant payment(s).

12.

Order 5(b)(i) of the orders made on 22 November 2019 be varied to suspend mortgage repayments as and from 1 April 2020 until such time as the mortgagee requires the mortgage repayments to be reinstated, and thereafter to enable the husband to negotiate with the mortgagee to reduce the mortgage repayments to interest only on the basis that the husband continue to make the mortgage repayments (irrespective of the outcome of the husband’s negotiations with the mortgagee) as and when they fall due.

13.

Order 9 of the orders made on 22 November 2019 are discharged.

14.

Save as expressly provided for in these orders, the orders made by this Honourable Court on 22 November 2019 remain in full force and effect.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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