Atkins & Hunt & Ors

Case [2019] FamCA 977


FAMILY COURT OF AUSTRALIA

ATKINS & HUNT AND ORS [2019] FamCA 977

FAMILY LAW – PROPERTY – Where a property settlement order was made in 2014 – Where the wife’s appeal of that order was successful and the matter was remitted for rehearing – Where the value of the husband’s interest in family companies is in dispute – Where the wife contends that the companies are the “mere puppet” and the “alter-ego” of the husband – Where the evidence falls short of establishing that the companies were the husband’s “mere puppet” – Whether the husband’s controlling shares in the company should nonetheless have the same value as all the shares in the company – Where the husband transferred part of his shares in the holding company when the wife’s appeal against the 2014 property settlement order was pending –Where the requirements of s 106(B)(1) are satisfied – Where the husband made the substantial financial contribution and the wife made a non-financial contribution during the course of their cohabitation – Where the Court finds it is just and equitable to make a property settlement order, including that the husband pay the wife a sum of money – Where an order pursuant to s 106B(1) is made that will be operatable if the payment by the husband to the wife is not made.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an order that the husband pay her spousal maintenance – Where the husband opposes that order being made – Where the Court finds that the wife has a reasonable need which the husband has capacity to pay – Where a spousal maintenance order is made in favour of the wife.

Corporations Act 2001 (Cth) s180, 181, 232, 254T
Family Law Act 1975 (Cth) s 79, 72, 74, 106B
Income Tax Assessment Act 1936 (Cth) Part III
Atkins & Hunt and Ors [2017] FamCAFC 79
Atkins & Hunt and Ors [2019] FamCA 821
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Ashton & Ashton (1986) FLC 91-777
Bevan and Bevan (1995) FLC 92-600
Commonwealth v Milledge (1953) 90 CLR 157
Gould and Gould and Ors (1993) FLC 92-434
Halabi v Artillaga and Ors (1994) FLC 92-470
In the marriage of Abdullah (1981) FLC 91-003
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Dunbar (1987) FLC91-846
In the Marriage of Mitchell (1995) FLC 92-601
Kennon v Spry (2008) 238 CLR 366
Lenehan and Lenehan (1987) FLC 91-814
Ngurli Ltd v McCann (1953) 90 CLR 425
APPLICANT: Ms Atkins
RESPONDENT: Mr Hunt
2nd RESPONDENT: Mr J Hunt
3rd RESPONDENT: Mr D Hunt
4th RESPONDENT: N Pty Ltd
5th RESPONDENT: T Pty Limited
6th RESPONDENT: H Pty Limited
7th RESPONDENT: Mr EE Hunt
FILE NUMBER: SYC 425 of 2012
DATE DELIVERED: 18 December 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J

HEARING DATE:

DATE OF LAST SUBMISSION:

19 – 21 August 2019;
20 – 21 November 2019

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AGLC
Atkins & Hunt & Ors [2019] FamCA 977
Case
[2019] FamCA 977
Decision Date

CaseChat Overview and Summary

This matter concerned a property settlement and spousal maintenance dispute between a husband and wife, heard by Watts J. The wife sought a property settlement and spousal maintenance, and the husband opposed the spousal maintenance claim. A previous property settlement order from 2014 had been appealed by the wife and remitted for rehearing. A key issue in the property settlement was the valuation of the husband's interest in family companies, with the wife arguing they were the "mere puppet" or "alter-ego" of the husband. The husband had also transferred shares in a holding company while the wife's appeal was pending.

The court was required to determine the appropriate property settlement, including the valuation of the husband's shareholdings in family companies and whether a transfer of shares made during the appeal process should be set aside. Additionally, the court had to consider the wife's claim for spousal maintenance, assessing her needs and the husband's capacity to pay. The court also needed to determine if the requirements of section 106B(1) of the *Family Law Act 1975* (Cth) were met in relation to the share transfers.

Watts J found that the evidence did not establish the companies were the husband's "mere puppet" or "alter-ego." However, the court determined that it was just and equitable to make a property settlement order, including a payment from the husband to the wife. The court also found that the wife had a reasonable need for spousal maintenance, which the husband had the capacity to pay. The court made orders for a property settlement, including a sum of $964,683 to be paid by the husband to the wife within two months. The court also ordered that the husband indemnify the wife against liabilities arising from the operations of certain companies. In the event the husband failed to make the property settlement payment within the specified timeframe, orders were made pursuant to s 106B(1) to set aside certain share transfers and effect the re-transfer of those shares to the husband, with further provisions for payments to third parties. The court also ordered the husband to pay the wife spousal maintenance of $550 per week.

Orders

Orders of the court

1.

All previous orders are discharged.

2.

Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), an order be made in the terms of paragraphs 3 to 6.

3.

The husband, within two months, pay to the wife the sum of $964,683.

4.

The husband indemnify and keep indemnified the wife from and against all actions, claims, suits or demands howsoever made against the wife in relation to or arising out of any liability associated with the operations of N Pty Ltd, T Pty Limited and H Pty Limited and any other liability asserted to be owed by the wife to any of the respondents or arising from any business conducted by them.

5.

The wife be the sole owner of all items of furniture, property, effects and superannuation in her name possession, custody or control.

6.

The husband be the sole owner of all items of furniture, property, effects and superannuation in his name possession, custody or control.

7.

In the event that the husband fails to make the payment referred to in paragraph 3 within two months, pursuant to s 106B(1) of the Act:

(a) The transfer of the 400 “A” class shares held by Mr Hunt in N Pty Limited ACN … (“N Pty Ltd”) to Mr J Hunt be set aside;

(b) The transfer of the 250 “A” class shares held by T Pty Ltd ACN … (“T Pty Ltd”) in N Pty Ltd to Mr D Hunt be set aside;

(c) The transfer of the 250 “A” class shares held by T Pty Ltd in N Pty Ltd to Mr EE Hunt be set aside;

(d) For the purposes of giving effect to paragraph 7(a), Mr J Hunt forthwith do all acts and things and sign all documents necessary so as to transfer to Mr Hunt the 400 “A” class shares in N Pty Ltd;

(e) For the purposes of giving effect to paragraph 7(b), Mr D Hunt forthwith do all acts and things and sign all documents necessary so as to transfer to T Pty Ltd the 250 “A” class shares in N Pty Ltd;

(f) For the purposes of giving effect to paragraph 7(c), Mr EE Hunt forthwith do all acts and things and sign all documents necessary so as to transfer to T Pty Ltd the 250 “A” class shares in N Pty Ltd;

(g) Simultaneously with paragraph 7(d), Mr Hunt do all acts and things necessary to pay to Mr J Hunt the sum of $40,000 from his entitlement to the net assets of the parties such that the sum is not a joint liability of the parties;

(h) Simultaneously with paragraph 7(e), Mr Hunt do all acts and things necessary to pay to Mr D Hunt the sum of $25,000 from his entitlement to the net assets of the parties such that the sum is not a joint liability of the parties; and

(i) Simultaneously with paragraph 7(f), Mr Hunt do all acts and things necessary to pay to Mr EE Hunt the sum of $25,000 from his entitlement to the net assets of the parties such that the sum is not a joint liability of the parties.

(j) The husband is restrained from dealing in any way with the A Class shares which he receives as a result of paragraph 7, pending the payment to the wife of the sum referred to in paragraph 3.

8.

All parties are given leave to make any application in respect of the implementation of these orders.

9.

In the event either party refuses or neglects to sign any deed or instrument to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Act to sign such document on behalf of such party to give effect to the operation of the deed or instrument.

10.

The husband pay to the wife, by way of spousal maintenance, the sum of $550 each week, the first payment within 7 days.

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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