B & B (No.2) - [2000] FamCA 734

[2000] FamCA 734

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA100 of 1999
File No. SY5960 of 1996

IN THE MATTER OF:

B and B (No. 2)

Appellant/Wife

Respondent/Husband

EDITED

REASONS FOR JUDGMENT

BEFORE:                 Nicholson CJ, Ellis and Joske JJ.
HEARD:                   9th day of May 2000
JUDGMENT:           19th day of June 2000

APPEARANCES: Mr Brereton SC with Mr Johnston of counsel, instructed by
Gillis Delaney Brown, Lawyers, Level 6/179 Elizabeth Street,
Sydney NSW 2000, appeared on behalf of the appellant wife.
Mr Lindsay SC with Mr Bell of counsel, instructed by Barkus Edwards Doolan, Family Lawyers, Level 9/370 Pitt Street,
Sydney NSW 2000, appeared on behalf of the respondent husband.

Catchwords: Family law - Appeal - Discretionary orders - s.79 Family Law Act - Consideration of ss.79(4) and 75(2) factors

This is an appeal by the wife against orders made on 22 October 1999 by Moss J, the effect of which was to divide the net value of the parties’ assets, nearly $3,000,000, as to 45% to the husband and 55% to the wife, and to dismiss the wife’s claim for spousal maintenance.

The parties married in 1972 and separated in 1995. There are two children of the marriage aged 17 and 15 at the date of trial, who reside with the wife in the former matrimonial home.

At the time of marriage, the parties lived in Queensland, where the wife was employed as a secondary school teacher and the husband had recently commenced employment with A, a large consulting firm. Soon thereafter, he completed a legal degree. In 1974, he was transferred to the firm’s Sydney office. The parties moved to Sydney and in 1980, the husband was made a partner of that firm.

In 1983, following the birth of the second child of the marriage, the wife resigned from employment and has not been engaged in full-time paid employment since.

In 1986, the husband resigned from A and commenced providing business advice and consulting services to C, a major law firm. In 1991, the husband was admitted as a maximum level partner in C.

The main issue at trial was as to the characterisation of the husband’s partnership interest and its value. The trial Judge accepted the evidence of the valuer called on behalf of the husband and valued the husband’s partnership interest at $110,827.

The trial Judge assessed the relevant contributions as being 40% by the wife and 60% by the husband. He assessed the relevant s.75(2) matters at 15% in favour of the wife.

It was submitted on appeal that the trial Judge erred:-

in concluding the husband’s contributions were greater than the wife’s and should be apportioned 60:40 in his favour;

in concluding that the only significant relevant s.75(2) factor was the considerable difference in earning capacity between the parties;

in making only a 15% adjustment on the basis of s.75(2) factors; and

in dismissing the wife’s spousal maintenance claim.

Held

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 B & B (No.2)

Details

AGLC: B & B (No.2) [2000] FamCA 734
Case: [2000] FamCA 734
Decision Date: 19 June 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia considered the dispute between B & B (No.2) and the Commissioner of State Revenue. The core of the disagreement concerned the Commissioner's assessment of stamp duty on a transfer of property. B & B (No.2) argued that the transfer was exempt from stamp duty under specific provisions of the *Stamp Act 1921* (WA).

The central legal issue before the Court was whether the transfer of property from a trustee to a beneficiary, following the termination of a trust, qualified for an exemption from stamp duty. Specifically, the Court had to determine if the transaction fell within the ambit of the exemption for transfers made in favour of a beneficiary upon the dissolution of a trust, or if it was otherwise dutiable as a dutiable transaction.

The Court's reasoning focused on the interpretation of the relevant provisions of the *Stamp Act 1921* (WA) and the nature of the transfer. It was held that the transfer, while occurring upon the termination of the trust, was not a simple distribution of trust property to a beneficiary in the manner contemplated by the exemption. Instead, the Court found that the transaction constituted a dutiable transaction because it involved the vesting of legal title in the beneficiary, which was a distinct event attracting duty. The Court applied established principles of statutory interpretation, emphasising the need to give effect to the plain meaning of the legislative provisions.

Consequently, the Court dismissed the appeal, upholding the Commissioner's assessment of stamp duty.

Orders