Vetsch and Yosufai & Ors (No 2)

[2019] FamCA 640

FAMILY COURT OF AUSTRALIA

VETSCH & YOSUFAI AND ORS (NO. 2) [2019] FamCA 640

FAMILY LAW – PROPERTY – Interim – Where Orders were made in this matter to preserve on an interim basis the occupation of certain property by each of the Applicant, the First Intervener and the Second Intervener – Where a solicitor was appointed as trustee for the sale of several real properties and was to make contact with two banks who were mortgagees of some of those properties, and negotiate with them to refrain from exercising their powers of sale in respect to mortgages – Where this was unsuccessful – Where further orders are made to secure any net proceeds of sale of the properties after the banks have sold them pending the hearing and determination of all of the parties’ applications and cross-applications for property adjustment orders.

APPLICANT: Ms Vetsch

RESPONDENT: Mr Yosufai

FIRST INTERVENER: Ms Devereux

SECOND INTERVENER: Ms Sultan

FILE NUMBER: BRC 10889 of 2016

DATE DELIVERED: 10 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Johnson (by telephone)

Quinn & Scattini

THE RESPONDENT: No Appearance

THE FIRST INTERVENER: In Person

THE SECOND INTERVENER: No Appearance

Orders

1. That notwithstanding the wording of paragraph (5) of the Orders of this Court of 15 May 2019, the appointment of Mr G, solicitor of Brisbane, as Trustee for Sale of the two properties:

   (i)V Street, Suburb A in the State of Queensland more particularly described as Lot … on SP … Title Reference … registered in the name of Z Pty Ltd as Trustee; and

   (ii), C Street, Suburb A in the State of Queensland more particularly described as Lot … on SP …, Title Reference … registered in the name of Z Pty Ltd as trustee

   shall continue, subject to the exercise of any pre-existing rights of the National Australia Bank to exercise a power of sale over either or both the said properties, with the authority conferred on the said Mr G by paragraphs (1), (12) and (13) of the Orders of this Court of 15 May 2019, to continue to be exercised by him as may be necessary to recover the value of all of the assets of the Self-Managed Superannuation Fund of Mr Yosufai and Ms F and convert that value into cash at bank to be held by him as trustee for that Self-Managed Superannuation Fund pending further order of this Court.

2. That until further order, an injunction is hereby granted restraining the Respondent husband, Mr Yosufai and/or his adult daughter, Ms F, in their capacities as directors of the company, Z Pty Ltd, that is trustee of their Self-Managed Superannuation Fund, from taking any steps to cause the transfer, sale or further encumbrance of either of the two properties listed in paragraph (1) of these Orders. 

3. That the Respondent husband, Mr Yosufai and/or his adult daughter, Ms F, in their capacities as directors of the company, Z Pty Ltd, that is trustee of their Self-Managed Superannuation Fund, are hereby ordered to provide to the said Mr G, solicitor of Brisbane, within seven (7) days of the date of these Orders, all books of account of their Self-Managed Superannuation Fund, and the names of the accountants for the fund who have prepared the fund’s most recently prepared annual financial statements and tax returns and the names of any separate auditors of those accounts of the fund.

4. That noting that the National Australia Bank and the Commonwealth Bank of Australia intend to exercise their powers of sale in respect of certain real properties situated at:

   NAB

   (i)1 W Street, Suburb L;

   (ii)3 W Street, Suburb L;

   (iii)J Street, Suburb E;

   (iv)M Street, Suburb N;

   (v)V Street, Suburb A; and

   CBA

   (vi)     7 H Street, Suburb L; and

   (vii)3 R Street, Suburb N;

   all and any net proceeds of sale of each of the said properties, after discharge of all mortgages secured by each of the said properties as they are sold, payment of any other costs the mortgagee exercising its power of sale is entitled to recover, and payment of all other costs of sale,  are to be paid into the trust account of the said Mr G, solicitor of Brisbane, to be held by him as trustee for the parties in this case or as trustee for the Self-Managed Superannuation Fund of Mr Yosufai and his adult daughter, Ms F, as may be required.

5. That the said Mr G shall provide T Firm, solicitors for the NAB, and Y Lawyers, solicitors for the CBA, with copies of the sealed Orders in this matter and liaise with them in respect of the receipt into his trust account of any funds to be paid pursuant to paragraph (4) of these Orders.

6. That the matter is listed before his Honour Justice Forrest again for further mention and the making of any further directions or orders as may be considered necessary at 10.00 am on Tuesday, 18 February 2020.

7. That each of the parties has liberty to seek the relisting of the matter earlier than that date if necessary on the giving of written notice to all of the other parties.

IT IS FURTHER ORDERED, UNTIL FURTHER ORDER

1. That the First Intervener, Ms Devereux, has sole parental responsibility in respect of the child, X born …2015, for the specific purpose of applying to the Australian Government for a renewal of the said child’s Australian Passport without the need for the signature or express permission of the father, Mr Yosufai.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10889 of 2016

Ms Vetsch

Applicant

And

Mr Yosufai

Respondent

And

Ms Devereux

First Intervener

And

Ms Sultan

Second Intervener

REASONS FOR JUDGMENT

1. On 15 May 2019, I made Orders in this matter designed to preserve, on an interim basis, the occupation of certain property by each of the Applicant, the First Intervener and the Second Intervener.

2. That was to be achieved, if possible, by Mr G, solicitor, who I appointed as trustee for sale of several real properties, making contact with the National Australia Bank (“NAB”) and the Commonwealth Bank of Australia, the mortgagees of some of those properties, and negotiating with those banks for them to refrain from acting in exercise of their powers of sale in respect to mortgages that were in default through the non-payment of mortgage instalments by the Respondent who has left Australia and now resides in Pakistan.

3. Unfortunately, Mr G was unable to secure such restraint on the part of the banks. He was advised by the solicitors who represent the two banks that their clients would go ahead and sell the properties to discharge mortgage debt. Accordingly, Mr G will no longer be trustee for the sale of any of those properties.

4. The property in which the First Intervener lives with the two children or her relationship with the Respondent is not being sold by the NAB at the moment. The First Intervener, who is a joint proprietor (along with the Respondent) of the property in which she lives, is working and paying the mortgage as required.

5. The property in which the Applicant resides is to be sold and she will have to find alternative accommodation.

6. The property in which the Second Intervener resides is also to be sold, as far as I understand. So, too, is the property that she wanted to move into. She will have to find alternative accommodation, too.

7. Though cross-collateralised and securing debts that are significantly in arrears and in default, the reason for the properties having to be sold, the total value of the properties is likely to exceed the total amount of debt to be discharged by the sale of the properties. Indeed, though it is conjecture at this stage, there could remain some $700,000 or more in net sale proceeds when all sales are completed.

8. Accordingly, I will make some further orders today to secure any and all net proceeds of sale of the properties after the banks have sold them pending the hearing and determination of all of the parties’ applications and cross-applications for property adjustment orders. Such orders will include an order requiring any net proceeds of sale after discharge of the mortgages and payment of costs of sale, to be paid to the trust account of Mr G pending further orders.

9. As there is a self-managed superannuation fund controlled and run by the Respondent and his adult daughter (seemingly through a corporate trustee) which has two real properties amongst its assets, one with a mortgage debt to the NAB attached to it, the other with a mortgage to the NAB registered over it but with respect to which there is said to be nothing owing, I will also make Orders that include interim injunctive restraint of the Respondent and his daughter from taking any steps as directors of that trustee company to sell, transfer or further encumber any of those properties.

10. I will also make another Order that was requested by Mr G, namely that the Respondent and the adult daughter provide Mr G with the books of account of the self-managed superannuation fund and the names of the accountants and auditors who have acted in respect of that fund in recent times. That is appropriate given that I have made Mr G trustee of that fund for the purposes of determining its assets and liabilities, realising the current value of the assets and turning that value into cash, ensuring that the fund is a complying fund and determining the value of the member interests in that fund.

11. I will list the matter for further mention and the making of any necessary orders or directions on a day in February, next year.

12. Finally, the First Intervener made an oral application for an order that permits her to apply for and obtain a renewal of an Australian passport for the eldest daughter of the relationship between her and the Respondent without the Respondent’s consent being required.

13. The child already has an Australian passport, but it is due to expire in the first half of next year. The First Intervener has applied to the Australian Government for a renewal of that passport and has been told that without the father’s consent evidenced by his signature or an Order of the Court, no renewed passport could be issued.

14. The First Intervener mother told the Court that she had asked the father for his consent by communicating with him but that he had not responded. She wants to take the two girls to the Country BB with her own mother for a break of several weeks’ duration over the coming Christmas and New Year holidays. She has taken the children to that country and returned to Australia at least two times before. She has the property here in Brisbane in which she has an interest. She assures the Court that she will return to Australia at the end of the holiday as she prefers to live here and does not want to live in the Country BB again. I accept the truth of that evidence.

15. The father did not appear during this morning’s hearing. Nevertheless, I am satisfied that the mother should be given the right to apply for a renewed Australian passport for their daughter, so that she can take the child and the other child (for who she still has a valid passport with two more years of validity to run on it) to the Country BB for a holiday. I will give her that right by making an order that gives her sole parental responsibility for that purpose alone on an interim basis.

16. I make the orders set out at the commencement of these written reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 September 2019.

Associate: 

Date:  10 September 2019