Allen and Yates - [2008] FMCAfam 565

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLEN & YATES

[2008] FMCAfam 565

FAMILY LAW – Property – just and equitable – lack of full and frank disclosure – disregard “loan”.

Evidence Act1995, s.128
Family Law Act 1975, ss.75 (2), (2)(g), (k), (m), (o), 79 (2), (4), (4)(a) - (e)

Barker v Barker (2007) 36 Fam LR 650
Biltoft and Biltoft (1995) 19 Fam LR 82
In the Marriage of Chang and SU (2002) 29 Fam LR 406
Ferrero and Ferrero (1993) FLC¶92-335
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143
Re JS and GP (2006) 35 Fam LR 88
Noetel and Quealey (2005) FLC ¶93-230
AJO and GRO (2005) FLC ¶93-218
Pierce v Pierce (1999) FLC ¶92-844
Prince and Prince (1984) FLC ¶91-501
Russell v Russell (1999) FLC ¶92-877
Z v Z (2006) 34 Fam LR 296

Applicant:

MS ALLEN

Respondent:

MR YATES

File Number:

PAM 5 of 2005

Judgment of:

Neville FM

Hearing dates:

16 & 17 October & 21 November 2007 (Before Morcombe FM)

Date of Last Submission:

21 November 2007

Delivered at:

Canberra

Delivered on:

27 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Equity Lawyers

Counsel for the Respondent:

Mr Cairns

Solicitors for the Respondent:

Hunter Lawyers

ORDERS

Mr Yates is to pay to Ms Allen $451,000, being 55 per cent of the agreed value of the W property.
In the event that the sum is unable to be paid, the parties sign all documents and do all things necessary to list the W property for sale forthwith upon terms and conditions agreed between the parties and in default of such agreement, by a person nominated by the President (for the time being) of the Real Estate Institute of New South Wales, and upon completion of sale, the proceeds of the sale be applied as follows:-
(a)To pay all costs, commissions and expenses of the sale;
(b)To discharge the mortgage and any other encumbrances affecting the Property;
(c)The balance to be divided 55 per cent to Ms Allen and 45 per cent to Mr Yates.
In the event that the Property is not sold in accordance with Order 2 within three (3) months, then the Property is to be listed for sale by public auction with an auctioneer appointed by the parties and failing agreement, by a person nominated by the Real Estate Institute of New South Wales and the proceeds of the sale to be applied in accordance with Order 2.
Should the parties be unable to agree on the reserve price, then the reserve price is to be set by the agent who has conduct of the sale.
Each party is solely entitled to the exclusion of the other all other investments, chattels, items of furniture, motor vehicles, superannuation investments of any nature standing in their name or to their credit, and that each party is the sole and beneficial owner of all other items of property presently in that party’s…

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 Allen and Yates

Details

AGLC: Allen and Yates [2008] FMCAfam 565
Case: [2008] FMCAfam 565
Decision Date: 27 June 2008

CaseChat Overview and Summary

In the case before the Court, the parties, Ms Allen and Mr Yates, were involved in a dispute concerning the division of assets following the termination of their relationship. The primary issue at hand was the equitable distribution of the proceeds from the sale of a property known as the W Property, as well as other personal assets. The matter was heard in the Family Court of Australia, where the court was tasked with determining the fair allocation of assets in light of the parties' agreement and the relevant legal principles.

The legal issues that required resolution included the interpretation of the parties' agreement regarding the sale of the W Property, the appropriate division of the sale proceeds, and the allocation of personal assets between the parties. The court had to consider the terms of the agreement, the principle of equitable distribution, and the specific instructions given by the parties regarding the sale and division of the property and other assets.

The court, in its judgment, found that the parties had agreed to sell the W Property and divide the proceeds in a 55/45 ratio in favour of Ms Allen. Given that Mr Yates was unable to make the payment directly, the court ordered that the property be listed for sale, either by agreement or by a nominated auctioneer, with the proceeds to be applied to costs, encumbrances, and then divided according to the agreed ratio. If the property did not sell within three months, the court mandated a public auction. The court also ruled on the division of other personal assets, declaring each party the sole owner of items in their name, and ordered that each party bear their own costs.

The court's final orders, therefore, mandated that Mr Yates pay Ms Allen a specific sum, outlined the procedure for the sale of the W Property and the application of its proceeds, provided for a public auction if the property did not sell within a set period, and declared the ownership of personal assets. Each party was also to bear their own costs associated with the proceedings.

Orders

Orders of the court

Mr Yates is to pay to Ms Allen $451,000, being 55 per cent of the agreed value of the W property.

In the event that the sum is unable to be paid, the parties sign all documents and do all things necessary to list the W property for sale forthwith upon terms and conditions agreed between the parties and in default of such agreement, by a person nominated by the President (for the time being) of the Real Estate Institute of New South Wales, and upon completion of sale, the proceeds of the sale be applied as follows:-

(a) To pay all costs, commissions and expenses of the sale;

(b) To discharge the mortgage and any other encumbrances affecting the Property;

In the event that the Property is not sold in accordance with Order 2 within three (3) months, then the Property is to be listed for sale by public auction with an auctioneer appointed by the parties and failing agreement, by a person nominated by the Real Estate Institute of New South Wales and the proceeds of the sale to be applied in accordance with Order 2.

Should the parties be unable to agree on the reserve price, then the reserve price is to be set by the agent who has conduct of the sale.

Each party is solely entitled to the exclusion of the other all other investments, chattels, items of furniture, motor vehicles, superannuation investments of any nature standing in their name or to their credit, and that each party is the sole and beneficial owner of all other items of property presently in that party’s possession or recorded in that party’s name.

Each party pay 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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