FAMILY COURT OF AUSTRALIA
| ALDAM & CESARI (NO. 2) | [2020] FamCA 732 |
| FAMILY LAW – PROPERTY ADJUSTMENT – de facto relationship of 12 years’ duration – seven parcels of real property acquired – applicant contending he made superior contributions throughout, especially post-separation – property alteration orders made reflecting 70% of non-superannuation assets to the applicant and 30% to the respondent. FAMILY LAW – DISCLOSURE – defective disclosure by the respondent – consequences of such defective disclosure – application of the rule in Bacall & Zagar. FAMILY LAW – SUPERANNUATION – applicant proposing unduly complicated regime for altering superannuation entitlements – respondents proposal involving sale of property and equal division. |
| Biosecurity Act 2015 (Cth) Family Law Act 1975 (Cth) ss 79, 90SF(3), 90SM, 90SM(4) Family Law Rules 2004 (Cth) ch 13 Transfer of Land Act 1958 (Vic) s 42 |
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- AGLC
- Aldam and Cesari (No 2) [2020] FamCA 732
- Case
- [2020] FamCA 732
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate property adjustment, considering the parties' respective contributions and the consequences of the respondent's defective disclosure. It also had to address the division of seven parcels of real property and the parties' superannuation interests, including a self-managed superannuation fund. The court's task involved fashioning orders that equitably resolved these financial matters.
The court ultimately made property alteration orders reflecting a 70% division of non-superannuation assets in favour of the applicant and 30% to the respondent. The orders detailed specific arrangements for the transfer of properties, cash payments, and the division of superannuation entitlements, including provisions for the sale of certain properties and the allocation of funds. The court also addressed the consequences of default in complying with the orders, appointing one party as attorney for the other to execute necessary documents if compliance was not met.
Orders
Orders of the court
Amended pursuant to r 17.02 of the Family Law Rules 2004 (Cth) on 11 December 2020
N Street Property means the property situated at and known as N Street, Suburb R, Victoria registered in the name of the Applicant and the Respondent.
Q Street Property means the property situated at and known as Q Street, D Town, Tasmania registered in the name of the Applicant and the Respondent.
B Street Property means the property situated at and known as Unit 1 B Street, Suburb R, Victoria registered in the name of the Respondent.
T Street Property means the property situated at and known as T Street, Suburb G, Victoria registered in the name of the Respondent.
V Street Property means the property situated at and known as V Street, Suburb F, Victoria registered in the name of the Applicant.
DD Super Fund means the parties' self-managed superannuation fund.
date means within 60 days of the date of final orders.
Cash payment from the Respondent to the Applicant and transfer of N Street property
1.
On the date the following take place contemporaneously (settlement) –
(a) the respondent pay the applicant $40,959 as directed by the applicant (payment);
(b) the respondent transfer to the applicant at the applicant’s expense all his right title and interest in the N Street Property;
(c) the applicant discharge the registered Westpac mortgage in respect of the N Street Property;
(d) the applicant remove the caveat registered against the B Street Property;
(e) the applicant remove the caveat registered against the T Street Property; and
(f) in relation to the transfer and discharge –
(i) each party will pay their own conveyancing/legal costs and PEXA service fees relating to the Transfer and Discharge;
(ii) the applicant will pay the transfer lodgement fee for the transfer;
(iii) the applicant will pay all discharge fees.
2.
If the respondent has not made the whole of the payment or the applicant has not discharged the N Street mortgage by the date (default), settlement will not proceed on the date and –
(a) if the respondent is responsible for the default –
(i) the respondent will pay the applicant interest on the outstanding balance of the payment at the rate set by the Family Law Rules calculated weekly from the date (interest);
(ii) if the respondent is not able to complete settlement within 28 days of the date, the T Street and B Street Properties will be listed for sale forthwith (sale) with the parties to have the joint conduct of the sale of those properties and liberty to apply in relation to the sale process;
(iii) upon settlement of the sale of each of the T Street or B Street Properties, the proceeds of sale will be applied –
A. first, to pay all costs, commissions and expenses of the sale;
B. second, to discharge the mortgage and any other encumbrance registered against the property;
C. third, to pay the applicant the balance of the payment then outstanding together with any interest;
D. fourth, to pay the balance to the respondent;
(iv) upon the whole of the payment being made to the applicant, if either of the T Street or B Street properties remain unsold, that property may be removed from sale;
(v) the remaining matters for settlement pursuant to paragraph 1 will take place contemporaneously upon the final payment to the Applicant.
(b) if the applicant is responsible for the default –
(i) if the applicant is not able to complete settlement within 28 days of the date, the N Street Property will be listed for sale forthwith (sale) with the parties to have the joint conduct of the sale and liberty to apply in relation to the sale process;
(ii) upon settlement of the sale of each of the N Street Property, the proceeds of sale will be applied –
A. first, to pay all costs, commissions and expenses of the sale;
B. second, to discharge the mortgage and any other encumbrance registered against the property;
C. third, to pay the balance to the applicant;
(iii) upon the applicant discharging the N Street mortgage, the N Street property may be removed from sale;
(iv) the remaining matters for Settlement pursuant to paragraph 1 will take place contemporaneously upon the applicant discharging the N Street mortgage.
3.
Pending the completion of Settlement pursuant to paragraphs 1 or 2 –
(a) the applicant will be entitled to all rental proceeds for the N Street Property;
(b) the respondent will be entitled to all rental proceeds for the T Street and the B Street Properties;
(c) the applicant will be solely liable for all mortgage instalments and other outgoings for the N Street Property and will maintain building insurance for the N Street property;
(d) the respondent will be solely liable for all mortgage instalments and other outgoings for the T Street and the B Street Properties and will maintain building insurance for the T Street and the B Street Properties;
(e) neither party will encumber the N Street, T Street and/or B Street Property without the written consent of the other party;
(f) each party will hold their interest in the N Street, T Street and/or B Street Property on trust pursuant to these orders.
Q Street property
4.
Forthwith, the balance sale proceeds from the sale of the Q Street property held in the trust account of Blackwood Family Lawyers be paid to the applicant as directed by the applicant.
Superannuation
Applicant’s W Superannuation
5.
In relation to the applicant’s superannuation interest in the W Superannuation Plan:
(a) there will be an allocation for the purposes of s 90XT(4) of the Family Law Act of a base amount of $52,000 to the respondent from the applicant’s interest in the W Superannuation Plan;
(b) pursuant to s 90XT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the applicant’s entitlements in the W Superannuation Plan the respondent will be paid an amount calculated in accordance with pt 6 of the Family Law (Superannuation) Regulations using the base amount specified at paragraph 5(a), and there will be a corresponding reduction in the entitlement the applicant would have had in the W Superannuation Plan but for this order;
(c) paragraph 5(a) will take effect from the operative time being four business days after the day a sealed copy of this order is served upon the trustee of the W Superannuation Plan;
(d) having been afforded procedural fairness the trustee of the W Superannuation Plan will be bound to observe the provisions in paragraph 5(a) and the requirements pursuant to the Family Law Act and the Family Law (Superannuation) Regulations;
(e) by 4pm on 17 September 2020–
(i) the respondent will serve a sealed copy of this order upon the trustee of the W Superannuation Plan; and
(ii) the respondent will give notice in writing to the trustee of the W Superannuation Plan pursuant to reg 72 of the Family Law (Superannuation) Regulations.
DD Super Fund
6.
The parties forthwith do all acts and things necessary to enable the accountant for X Pty Ltd ATF DD Super Fund to complete and lodge all tax returns and financial statements for the DD Super Fund within seven days of receiving a request from the other party.
(6.1) The parties, in their capacity as Trustees of the Aldam and Cesari Super Fund (SMSF) will forthwith sell the real property situated at Unit 2 B Street, Suburb R Vic (SMSF property) and in relation to the sale of SMSF Property –
(a) on or before 4pm on 24 December 2020, the parties do all acts necessary to appoint a real estate agent agreed in writing to sell the SMSF Property and failing agreement, the respondent put a panel of 3 real estate agents to the applicant on or before 4pm on 31 December 2020 and the parties do all acts and things to forthwith appoint the real estate agent selected by the applicant from that panel;
(b) the parties, in their capacities as Trustees of the SMSF will have the joint conduct of the sale of the SMSF Property;
(c) the SMSF Property will be sold by public auction on a date to be agreed after consultation with the real estate agent, provided that the date will be no later than 28 February 2021;
(d) the reserve price for the SMSF Property will be as recommended by the real estate agent;
(e) either party, by written notice to the other party has liberty to elect to retain the SMSF Property within the SMSF fund at the reserve price recommended pursuant to paragraph 6.1(d) above;
(f) if the SMSF Property passes in at auction, either party by written notice to the other party be at liberty to elect to retain the SMSF Property within the Fund at the value the property passed in at;
(g) if neither party makes an election pursuant to paragraph 6.1(f) above, the SMSF property be listed for private sale with a reserve price set at the value the property passed in at, with that reserve price to reduce by 5% every 2 months until the property is sold and either party be at liberty to elect to retain the SMSF Property at the relevant reserve price at the conclusion of the 2 month period if the property has not sold;
(h) the parties will cooperate with the real estate agent in relation to the sale including making the keys for the SMSF Property available to the real estate agent, allowing inspection of the SMSF Property at times reasonably requested by the real estate agent and ensuring that the SMSF Property is in a neat and clean condition at the time of inspection by prospective purchasers; and
(i) each party will have liberty to apply in relation to the terms and conditions of the sale of the SMSF Property.
(6.2) Within 28 days of settlement of the sale of the SMSF property and/or of an election by either party pursuant to paragraph 6.1(d), (e) or (f) above –
(a) the parties forthwith do all acts and things necessary to enable the accountant for X Pty Ltd ATF The Aldam Cesari Super Fund to calculate each parties’ member balance taking into account the value of the SMSF property determined pursuant to paragraph 6.1 above and all costs associated with listing the SMSF property for sale including but not limited to real estate commission, auction costs and estimated capital gains tax arising from the sale of the SMSF property; and
(b) in relation to the respondent’s superannuation interest in Aldam Cesari Super Fund –
(i) the respondent will request the trustees of the Fund to transfer the whole of the respondent’s entitlements in the Fund (being the respondent’s member entitlements following the auction and taking into account costs of sale paid by the Fund) to a complying superannuation Fund of the respondent’s choice; and
(ii) contemporaneously with the transfer of the whole of the respondent’s entitlements in the Aldam Cesari Super Fund the respondent will –
A. close his member account in the Aldam Cesari Super Fund;
B. resign as a trustee of the Aldam Cesari Super Fund;
C. resign as a trustee of the Aldam Cesari Trust;
D. resign as a director of X Pty Ltd;
E. resign as a director of FF Pty Ltd;
F. transfer to the Applicant or his nominee his shareholding in X Pty Ltd; and
G. transfer to the Applicant or his nominee his shareholding in FF Pty Ltd.
7.
In relation to the respondent’s superannuation interest in DD Super Fund –
(a) there will be an allocation for the purposes of s 90XT(4) of the Family Law Act a base amount of $44,662 to the applicant from the respondent’s interest in the fund;
(b) pursuant to s 90XT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the respondent’s entitlements in the Fund the applicant will be paid an amount calculated in accordance with pt 6 of the Family Law (Superannuation) Regulations using the base amount specified at paragraph 7(a) and there will be a corresponding reduction in the entitlement the Respondent would have had in the Fund but for this order;
(c) paragraph 7(a) will take effect from the operative time being seven days from the date of these orders;
(d) having been afforded procedural fairness the trustees of the Fund will be bound to observe the provisions in paragraph 7(a) and the requirements pursuant to the Family Law Act and the Family Law (Superannuation) Regulations;
(e) the respondent will request the trustees of the Fund to transfer the balance remaining of the respondent’s entitlements in the Fund (being the respondent’s member entitlements less the base amount allocated to the applicant pursuant to paragraph 7(a)) by way of a cash payment to a complying superannuation Fund of the respondent’s choice;
(f) contemporaneously with the transfer of the whole of the respondent’s entitlements in the DD Super Fund the respondent will –
(i) close his member account in the DD Super Fund;
(ii) resign as a trustee of the DD Super Fund;
(iii) resign as a trustee of the DD Trust;
(iv) resign as a director of X Pty Ltd;
(v) resign as a director of P Pty Ltd;
(vi) transfer to the applicant or his nominee his shareholding in X Pty Ltd; and
(vii) transfer to the applicant or his nominee his shareholding in P Pty Ltd.
General orders
8.
Save as otherwise provided in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders –
(a) the parties will close any joint bank accounts and the balance will is to be divided equally between the parties;
(b) the applicant will retain for his sole use and benefit all property (including choses-in-action) in his possession as at the date of these orders including but not limited to –
(i) the V Street property;
(ii) the cars in his possession;
(iii) bank and like accounts in the applicant’s name;
(iv) the applicant’s superannuation entitlements;
(v) the personal effects, furniture and contents in the applicant’s possession including all of the furniture and contents at the properties he is to retain pursuant to these orders;
(c) the respondent will retain for his sole use and benefit all property (including choses-in-action) in his possession as at the date of these orders including but not limited to –
(i) the B Street property;
(ii) the T Street property;
(iii) the 2 dogs namely “AA” and “BB”;
(iv) bank and like accounts in the Respondent’s name;
(v) the respondent’s superannuation entitlements with CC Superannuation;
(vi) the personal effects, furniture and contents in the respondent’s possession including all of the furniture and contents at the properties he is to retain pursuant to these orders;
(d) any joint tenancy of the parties is hereby expressly severed;
(e) all insurance policies will remain the property of the named owner;
(f) each party will be solely liable for and indemnify the other in relation to –
(i) any liability encumbering any item of property to which they are entitled pursuant to these orders; and
(ii) any and all other liabilities their sole name.
9.
The parties will sign all documents and do all things necessary to give effect to these orders.
10.
In the event that either party (“defaulting party”) refuses or neglects within 14 days to comply with the provisions of the paragraphs 1, 2 or 7 of the orders, the other party is hereby appointed as attorney to execute all deeds and documents in the name of the defaulting party and to all acts and things necessary to give validity and operation to this order.
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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