Aheb and Aheb (No. 4) - [2009] FamCA 1245

FAMILY COURT OF AUSTRALIA

AHEB & AHEB (NO. 4)

[2009] FamCA 1245

FAMILY LAW – PROPERTY – Addbacks – Lengthy marriage – Agreement for equal division of property – Dispute as to the composition and value of the pool – Ongoing concerns of non-disclosure – Husband’s lack of disclosure founds the application of a robust approach to the evidence – Transactions and asset position remains imprecise due to confused evidence – Money transferred overseas by the husband credited against him as property received – Approximately equal division represents a just and equitable result

Family Law Act 1975 (Cth) ss 75, 79
Family Law (Superannuation) Regulations s 90MT

Biltoft & Biltoft (1995) FLC 92-614
Black & Kellner (1992) FLC 92-287
C & C [1998] FamCA 143
Challen and Challen [2007] FamCA 1292
Chang & Su (2002) FLC 93-117
In the Marriage of Mezzacappa (1987) FLC 91-853
In the Marriage of Weir (1993) FLC 92-338
K and K [2002] FamCA 1150
Kowaliw & Kowaliw (1981) FLC 91-092
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Ms Aheb

RESPONDENT:

Mr Aheb

FILE NUMBER:

MLF

2471

2006

DATE DELIVERED:

21 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Justice Murphy

HEARING DATE:

18-21 November 2008,
2-4 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nikou SC with Mr Mort

SOLICITOR FOR THE APPLICANT:

Jane Baldwin Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Wilson QC with Mr Carlile

SOLICITOR FOR THE RESPONDENT:

JK Lawyers & Co

Orders

Save and except for the following, all previous orders be and are hereby discharged;
(a)       All costs orders including all reserve costs;
(b)Upon compliance with the succeeding paragraphs of these orders, paragraphs 1-5 inclusive of orders made 6 November 2006;
(c)       Orders made 30 December 2008;
(d)        Orders made 5 February 2009;
(e)       Orders made 22 April 2009.
Within 30 days of the date of these orders:
(a)The husband do all such acts and things and sign all such documents as are necessary to transfer to the wife and/or her nominee at the expense of the wife all his right, title and interest in the following properties (which are collectively referred to in these orders as “the wife’s real properties”):
(i)Unit 2 at B, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(ii)Unit 3 at B, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(iii)Unit 2 at G, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(iv)Unit 1at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(v)Unit 2 at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(vi)Unit 3 at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;
(b)The wife do all such acts and things and sign all such…

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.

Continue reading Aheb and Aheb (No. 4)

Details

AGLC: Aheb and Aheb (No. 4) [2009] FamCA 1245
Case: [2009] FamCA 1245
Decision Date: 21 December 2009

CaseChat Overview and Summary

This matter came before Justice Murphy of the Family Court of Australia concerning the final division of property between the husband and wife. The proceedings involved the discharge of previous orders and the establishment of new arrangements for the transfer of various properties, company interests, and superannuation funds.

The court was required to determine the specific terms and conditions for the division of real estate, including the transfer of multiple units between the parties. Further issues included the sale of a property held by A Pty Ltd, the transfer of shares in K Limited, the winding up of the Aheb Business Trust and A Pty Ltd, and the transfer of the Aheb Superannuation Fund. The court also addressed the allocation of liabilities, including rates, taxes, and outgoings, as well as the payment of costs and the consequences of default.

Justice Murphy ordered the discharge of all previous orders, save for specific costs orders and certain paragraphs of earlier orders. The husband was directed to transfer several properties to the wife, and the wife was to transfer other properties to the husband. Both parties were to facilitate the sale of a property held by A Pty Ltd, with the husband to bear associated costs and capital gains tax. The husband was to indemnify the wife against liabilities of A Pty Ltd, and both parties were to share equally in the costs of winding up the Aheb Business Trust and A Pty Ltd, with the husband to bear any outstanding liabilities. The wife was to retain specific bank accounts and her superannuation fund, while the husband was to retain all other property. The court also made detailed provisions for the payment of costs, including the transfer of funds from various accounts, and outlined a process for the sale of a property in the event of the husband's default.

Orders

Orders of the court

Save and except for the following, all previous orders be and are hereby discharged;

(a) All costs orders including all reserve costs;

(b) Upon compliance with the succeeding paragraphs of these orders, paragraphs 1-5 inclusive of orders made 6 November 2006;

(d) Orders made 5 February 2009;

(e) Orders made 22 April 2009.

Within 30 days of the date of these orders:

(a) The husband do all such acts and things and sign all such documents as are necessary to transfer to the wife and/or her nominee at the expense of the wife all his right, title and interest in the following properties (which are collectively referred to in these orders as “the wife’s real properties”):

(i) Unit 2 at B, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(ii) Unit 3 at B, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(iii) Unit 2 at G, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(iv) Unit 1at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(v) Unit 2 at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(vi) Unit 3 at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(b) The wife do all such acts and things and sign all such documents as are necessary to transfer to the husband and/or his nominee at the expense of the husband all her right, title and interest in the following properties (which are collectively referred to in these orders as “the husband’s real properties”):

(i) Unit 1 at G, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(ii) Unit 4 at R, being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

The parties shall each do all such things, sign all such documents and the husband shall pay all such reasonable fees as might be necessary to cause A Pty Ltd ABN number … (“the company”) to sell the property situated at Unit 3 at R, C/T Vol … Folio …, and pay any capital gains tax arising therefrom with the wife to abandon any right, title, claim or interest she has, or may have, in the balance remaining to the interest that same shall vest absolutely in the company or the husband as the case may be.

Contemporaneously with the transfers referred to in paragraph 2 of these orders:

(a) The wife shall indemnify the husband against all rates, taxes and outgoings of whatever nature and kind with respect to the wife’s real properties;

(b) The husband shall indemnify the wife against all rates, taxes and outgoings of whatever nature and kind with respect to the husband’s real properties and in respect of the property referred to in paragraph 3 of these orders;

(c) The husband shall do all such things, sign all such documents and pay all such fees as are necessary to cause any and all caveats in respect of the wife’s real properties at his cost;

(d) The wife shall do all such things, sign all such documents and pay all such fees as are necessary to cause any and all caveats in respect of the husband’s real properties at her cost;

(e) The wife shall be solely entitled to the receipt of rents and the sole and exclusive use of the wife’s real properties;

(f) The husband shall be solely entitled to the receipt of rents and the sole and exclusive use of the husband’s real properties;

(g) The husband and the wife shall do all such acts and things and sign all such documents as are necessary:

(i) To transfer the wife’s shares in the company known as K Limited, ABN number … (“K Ltd”) to the husband;

(ii) To clear the debt owing by the company and for K Ltd to make such declarations as are necessary to discharge the debts owed to it by the company AND IT IS FURTHER ORDERED that the parties share equally in any costs incurred including the accountant’s costs and any other disbursements, taxation charges or costs in connection with the abovementioned as to K Ltd AND FURTHER in the event that there are outstanding costs, charges, taxation or any other liabilities, those liabilities are to be paid for by the husband;

(iii) Otherwise, the husband indemnify the wife and keep her so indemnified in respect of all debts and other liabilities including all future taxation liabilities of whatsoever kind and nature.

(h) The husband and the wife do all acts and sign all documents reasonably necessary to wind up the following entities, at the expense of the parties equally:

(i) Aheb Business Trust (‘the Trust”);

(ii) The company

with the parties to be liable equally for any accountant’s expenses and other liabilities, including any taxation liabilities.

(i) The husband and the wife do all acts and things and sign all documents reasonably necessary to effect the transfer to the wife and/or her nominee at the wife’s expense, the Aheb Superannuation Fund and to effect the removal of the company as Trustee of the Aheb Superannuation Fund.

That the husband and wife do all things reasonably necessary to direct and instruct the accountant, Mr E, to do all things necessary to give effect to these orders as applicable in a timely manner.

(a) The husband pay to the wife the total of her costs pursuant to orders of the court made on 30.12.2008; 12.3.2009 and 22.4.2009 totalling $16,132.

(b) The said costs be paid by:-

i. transferring forthwith to the wife the balance standing to the credit of the following accounts MISR Account No. …34; MISR Account No. …54; MISR Account No. …08; MISR Account No. …01; K Accounts; and A Pty Ltd Westpac Business Cheque Account No. …;

ii. The balance of any amount owing thereafter, within 30 days of the date of these orders.

In default of the husband meeting the payment of any monies required under these orders, including the amount due pursuant to the previous paragraph, the wife be at liberty to sell forthwith (“the sale”) the real property situate and known as Unit 1 at G more particularly described in Certificate of Title Volume … Folio … on such terms and conditions as are agreed within 3 working days and, and failing any agreement, or agreement within that time, terms and conditions as specified by the President of the Real Estate Institute of Victoria or his nominee.

Upon completion of the sale, contemplated by the previous paragraph of these orders, the proceeds of sale be applied as follows:

(a) First, to pay all costs, commissions and expenses of the sale and to pay any council and water rates, land tax and body corporate levies outstanding in respect of the real property;

(b) Secondly, to set aside a sum for Capital Gains Tax with respect of the property as advised by Mr E, to be held by the wife’s solicitors in an interest bearing trust account in the parties’ joint names and with any surplus monies to be divided equally between the parties after payment of the tax as assessed or otherwise paid to the wife to meet compliance with these orders;

(c) Thirdly, payment of the wife of any costs due and owing to her consequent upon the husband’s default to meet his share of any payments or costs referred to herein;

(d) Fourthly, any sum owing pursuant to these orders, together with interest thereon at the rate specified in the Family Law Rules 2004, adjusted monthly from the due date for the payment;

(e) The balance to the husband.

Save as otherwise specified herein, each party be responsible for all rates, taxes (including capital gains tax) and outgoings in relation to the properties which they are to receive pursuant to these Orders from the date of compliance with the orders.

10.

The husband retain for his sole use and benefit any and all property whether real or personal and of whatever type or description.

11.

The husband and the wife each do all acts and thing, and sign all documents necessary in order for the wife to retain for her sole use and benefit the following accounts:

(a) National Bank of Egypt Account Number …;

(b) ANZ Wantirna Account Number …64;

(d) ANZ Account Number …58;

(e) Commonwealth Bank Super Fund Account ($17,000 approx).

12.

That unless otherwise provided in these orders and except for enforcing the payment of any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action, motor vehicles) in the possession of such party as at the date of these orders.

(b) Each party hereby retain any superannuation benefits belonging to or earned by that party to the exclusion of the other party.

(d) Each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

13.

In the event that the husband fails, refuses or neglects to comply with the provisions of these Orders, then the Registrar of the Family Court at Melbourne be appointed to execute all documents in the name of the husband and do all acts and things necessary to give effect and validity to this order AND FURTHER the wife be at liberty to apply any reasonable costs incurred consequent upon the husband’s non-compliance.

14.

Otherwise all extant applications be dismissed and removed from the list of cases awaiting final hearing.

15.

Certify for Senior Counsel and Junior Counsel.

16.

Following the expiration of the Appeal period, all subpoenaed documents 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.

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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