ADCOCK & ADCOCK - [2013] FMCAfam 248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ADCOCK & ADCOCK

[2013] FMCAfam 248

FAMILY LAW – Property proceeding for long marriage – import and effect of deed under Bankruptcy Act early in the marriage & s.86 deed – issues of valuation of cattle – Husband expert in cattle breeding – role and responsibilities of expert – large number of substantial gifts from Wife’s family during relationship.

Evidence Act 1995, s.79
Family Law Act 1975, ss.86, 75(2), 79(2)

Aleksovski v Aleksovski (1996) FLC ¶92-705
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623
Clives v Clives (2009) 40 Fam LR 273
Dakin & Dakin [2012] FamCAFC 120
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
In the Marriage of Kessey (1994) 18 Fam LR 149
Martin & Crawley [2012] FamCA 1032
TWN & PAQ (2006) 34 Fam LR 190
AJO v GRO (2005) 33 Fam LR 134
Pierce & Pierce (1999) FLC ¶92-844
Russell v Russell (1999) FLC ¶92-877
Smith & Fields [2012] FamCA 510
Stanford v Stanford (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259
Watson & Ling [2013] FamCA 57

J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: LexisNexis Butterworths, 2013)

Applicant:

MS ADCOCK

Respondent:

MR ADCOCK

File Number:

AYC 118 of 2011

Judgment of:

Neville FM

Hearing dates:

2 & 3 July 2012

Date of Last Submission:

31 August 2012

Delivered at:

Canberra

Delivered on:

22 March 2013

REPRESENTATION

Counsel for the Applicant:

Ms S Christie

Solicitors for the Applicant:

Farrell Lusher Solicitors, Wagga Wagga

Counsel for the Respondent:

Mr S Gardiner

Solicitors for the Respondent:

Walsh & Blair, Wagga Wagga

ORDERS

Within 7 days the wife shall do all acts and things and execute all documents necessary to list the real property Lot [1] and Lot [2], more particularly known as [S] properties (hereinafter referred to as “the real property”) for sale by private treaty as set out in the following manner:

1.1.the wife will appoint a real estate agent within seven (7) days of the making of these orders;
1.2.the listing price for sale shall be as recommended by the agent;
1.3.if the property fails to sell on or before 1 October 2012, the wife shall do all necessary acts and things to list the property for sale by public auction in either October or November 2012, and the reserve price shall be as determined by the wife;
1.4.in the event the bidding at the auction does not reach the reserve price, the wife may negotiate with the highest bidders or any other interested person and effect a sale of the real property at a price which is not more than 5% below the reserve price;
1.5.if the property remains unsold, the wife will do all acts and things and sign all documents necessary to immediately relist the property…

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: ADCOCK & ADCOCK [2013] FMCAfam 248
Case: [2013] FMCAfam 248
Decision Date: 22 March 2013

CaseChat Overview and Summary

This case involved a dispute between the parties over the division of their assets following a marriage breakdown. The matter was heard in the Family Court of Australia. The central issues before the court were the distribution of the parties' real and personal property, and the payment of certain outstanding debts and expenses.

The court had to determine how the real property, including two lots, should be listed for sale and the conditions under which it should be sold. It was also required to decide how the proceeds from the sale should be allocated, including paying off debts and dividing the remaining balance between the parties. Additionally, the court needed to clarify the ownership of various personal assets and liabilities of each party, and to establish whether either party was to indemnify the other for certain debts.

In its reasoning, the court ordered the wife to list the real property for sale by private treaty, with a fallback to a public auction if the property did not sell by a specified date. If the auction price did not meet the reserve price, the wife was allowed to negotiate a sale at up to 5% below the reserve price. The court also detailed how the proceeds from the sale should be distributed, prioritising certain debts and expenses before dividing the remainder between the parties. The court clarified the ownership of various personal assets and liabilities, ensuring that each party was indemnified against liabilities incurred by the other. Finally, the court ordered that each party bear their own costs unless submissions were made within a specified period.

Orders

Orders of the court

Within 7 days the wife shall do all acts and things and execute all documents necessary to list the real property Lot [1] and Lot [2], more particularly known as [S] properties (hereinafter referred to as “the real property”) for sale by private treaty as set out in the following manner:

1.1. the wife will appoint a real estate agent within seven (7) days of the making of these orders;

1.2. the listing price for sale shall be as recommended by the agent;

1.3. if the property fails to sell on or before 1 October 2012, the wife shall do all necessary acts and things to list the property for sale by public auction in either October or November 2012, and the reserve price shall be as determined by the wife;

1.4. in the event the bidding at the auction does not reach the reserve price, the wife may negotiate with the highest bidders or any other interested person and effect a sale of the real property at a price which is not more than 5% below the reserve price;

1.5. if the property remains unsold, the wife will do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction again on a date in February 2013, with the reserve price to be nominated by the wife;

1.6. the wife shall instruct a solicitor to have conduct of the sale;

1.7. in the event the bidding at the auction does not reach the reserve price at the second auction, the wife may negotiate with the highest bidders or any other interested person and effect a sale of the real property at a price which is not more than 5% below the reserve price.

On settlement of the sale of the real property the proceeds of sale be paid in the following manner and priority:

2.1. all costs and expenses of the sale including legal costs and disbursements, agents’ commissions, valuers’ fees and auction expenses;

2.2. the amounts required to pay all municipal and water rates outstanding with or with respect to the real property;

2.3. an amount required to repay to the wife invoices for any and all of the following expenses paid by the wife from the date of these orders until the settlement of the real property:

· Chemical spraying;

· lashing and burning and planting of seed;

· all purchases of super and assorted pasture seed;

· all diesel fuel;

· [H] Livestock Health & Pest Authority costs;

· [K] Land Care Group costs;

· all casual labour;

· council rates;

· water rates;

· costs of cleaning up flood/storm debris;

· cost of repairing damaged fences;

· cost of all materials for the erection of new fences;

· labour cost of installation of new fences.

2.4. any taxes associated with the sale of the real property including capital gains tax if applicable;

2.5. the balance then remaining to be divided:

a) 28% to the husband;

b) 72% to the wife.

The entire proceeds from the sale of the property “[W]” and from the sale of the water licence, currently held in the trust account of Farrell Lusher Solicitors including all interest earned thereon, be transferred to the wife within seven (7) days.

Except as any paragraphs comprised in these orders provide to the contrary, as against the husband, the wife is the sole legal and beneficial owner of and the husband has no interest in:

4.1. the furniture, furnishings and effects in the wife’s possession;

4.2. monies standing to the credit of the wife in any bank accounts in her name;

4.3. the Hyundai motor vehicle and Toyota Landcruiser motor vehicle in the wife’s possession;

4.4. the shares including the Co-Op shares in the wife’s name;

4.5. the stock currently in the wife’s possession;

4.6. all other assets of whatever nature and kind presently in the name, possession or ownership of the wife.

Except as to paragraphs comprised in these orders provide to the contrary, as against the wife, the husband is the sole legal and beneficial owner of and the wife has no interest in:

5.1. the husband’s furniture, furnishings and effects in his possession;

5.2. monies standing to the credit of the husband in any bank accounts in his name;

5.3. he Mercedes motor vehicle in his possession;

5.4. the semen in the husband’s possession and name;

5.5. the stock in the husband’s possession and/or control;

5.6. all other assets of whatsoever nature and kind presently in the name, possession or ownership of the husband.

Except as to any paragraph comprised in these orders provide to the contrary:

6.1. the husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and

6.2. the wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.

Except as to any paragraph comprised in these orders provide to the contrary, each of the party releases the other from all debts owing from one to the other.

Both parties shall promptly do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of the provisions of the paragraphs comprised in these orders.

In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Family Court of Australia at Canberra is hereby appointed pursuant to 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

10. The Respondent pay the Applicant the sum of $5,000 in relation to the preparation of written submissions.

11. In the absence of any submission in writing within 7 days each party shall bear their own costs.

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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