Baldachino & Hanas - [2010] FamCA 234

FAMILY COURT OF AUSTRALIA

BALDACHINO & HANAS

[2010] FamCA 234

FAMILY LAW – PROPERTY – Just and equitable distribution of property between the parties – Effect of non-disclosure by the husband with respect to value of a corporate entity; taken into account under s 75(2) assessment as a significant financial resource to the husband

Family Law Act 1975 (Cth) ss75(2), 79(1), 79(4), 90AE(2), 117(1)

Af-Petersens & Af-Petersens (1981) FLC 91-095
Black & Kellner (1992) FLC 92-287
C & C [2005] FamCA 429
Gosper & Gosper (1987) FLC 91-818
Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144
Kessey & Kessey (1994) FLC 92‑495
Kowaliw & Kowaliw (1981) FLC 91-092
NHC & RCH [2004] FamCA 633
Pierce & Pierce (1999) FLC 92-844
Pittman & Pittman [2010] FamCAFC 30
Townsend and Townsend (1995) FLC 92-569
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Baldachino

RESPONDENT:

Mr Hanas

FILE NUMBER:

CAF

421

2005

DATE DELIVERED:

24 March 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks ACJ

HEARING DATE:

14 & 15 July 2008

2 & 3 October 2008
Written submissions of the husband 19 February 2009 & 16 March 2009
Written Submissions of the wife 5 June 2009
25 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T. Hodgson

SOLICITOR FOR THE APPLICANT:

Nicholl & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Mr J. Millar

SOLICITOR FOR THE RESPONDENT:

Christopher Mackay – Lawyer

Orders

IT IS ORDERED THAT:

The corporate entities known as “E Pty. Ltd.” and “L Stud Pty. Ltd.” are joined as parties to these proceedings.
In accordance with the relevant provisions of Part VIIIAA of the Family Law Act 1975 (Cth) (and specifically s 90AE(2):
(a)Within ninety (90) days of the date of these orders, the husband and wife will do all acts and things and sign and execute all necessary documents to cause E Pty. Ltd. to transfer to the wife the whole of its right, title and interest free of any encumbrance:
(i)In the property described as Lot 4 being the whole of the land comprised in Folio Identifier … and known as … (‘the B property’) in the State of New South Wales;
(ii)The chattels upon and contents contained within the B property; and
(iii)The Nissan Patrol motor vehicle.
Within seven (7) days of the date of these orders, the wife will do all acts and things and sign and execute all documents necessary to resign as a director of E Pty. Ltd. and transfer her shareholding to the husband or his nominee.
Subject to these Orders, the husband will indemnify and keep indemnified the wife absolutely from any claims against her arising form the activities of E Pty. Ltd. and L Stud Pty. Ltd. and any corporation in which he is a shareholder and director, including claims for directors’ loans. Such indemnity will include any legal costs incurred by the wife in defending any such claims, actions or demands.
The husband will indemnify and keep indemnified the wife and obtain her release…

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 Baldachino & Hanas

Details

AGLC: Baldachino & Hanas [2010] FamCA 234
Case: [2010] FamCA 234
Decision Date: 24 March 2010

CaseChat Overview and Summary

The proceedings involved a dispute between a husband and wife concerning the division of their property. The court, presided over by Faulks ACJ, was required to make orders regarding the transfer of assets, indemnities, and financial settlements between the parties. Corporate entities, "E Pty. Ltd." and "L Stud Pty. Ltd.", were joined as parties to facilitate the property division.

The primary legal issues before the court were the appropriate division of property, including real estate and motor vehicles, and the allocation of financial liabilities and indemnities between the husband and wife. This involved determining how to effect the transfer of certain assets held by a company to the wife, and the extent to which each party should be indemnified against claims arising from the activities of companies and loans. The court also had to address the payment of a significant sum by the husband to the wife and the consequences of any default in that payment.

The court's reasoning, as reflected in its orders, focused on achieving a final resolution of the parties' financial affairs. It applied provisions of the *Family Law Act 1975* (Cth), specifically Part VIIIAA and section 90AE(2), to direct the transfer of specific property, including the "B property," its contents, and a motor vehicle, from E Pty. Ltd. to the wife. The court also ordered the wife to resign as a director and transfer her shareholding in E Pty. Ltd. to the husband. Crucially, the court imposed broad indemnities on the husband to protect the wife from claims related to the companies and certain loans. A substantial payment of $517,000 was ordered to be made by the husband to the wife, with provisions for the sale of specified properties if this payment was not met. The court also declared each party to be the owner of property in their possession, with specific units in Queensland being confirmed as belonging to each party respectively.

Orders

Orders of the court

IT IS ORDERED THAT:

The corporate entities known as “E Pty. Ltd.” and “L Stud Pty. Ltd.” are joined as parties to these proceedings.

In accordance with the relevant provisions of Part VIIIAA of the Family Law Act 1975 (Cth) (and specifically s 90AE(2):

(a) Within ninety (90) days of the date of these orders, the husband and wife will do all acts and things and sign and execute all necessary documents to cause E Pty. Ltd. to transfer to the wife the whole of its right, title and interest free of any encumbrance:

(i) In the property described as Lot 4 being the whole of the land comprised in Folio Identifier … and known as … (‘the B property’) in the State of New South Wales;

(ii) The chattels upon and contents contained within the B property; and

(iii) The Nissan Patrol motor vehicle.

Within seven (7) days of the date of these orders, the wife will do all acts and things and sign and execute all documents necessary to resign as a director of E Pty. Ltd. and transfer her shareholding to the husband or his nominee.

Subject to these Orders, the husband will indemnify and keep indemnified the wife absolutely from any claims against her arising form the activities of E Pty. Ltd. and L Stud Pty. Ltd. and any corporation in which he is a shareholder and director, including claims for directors’ loans. Such indemnity will include any legal costs incurred by the wife in defending any such claims, actions or demands.

The husband will indemnify and keep indemnified the wife and obtain her release from any loans asserted to be outstanding to the husband’s mother, Mrs Hanas, in respect of the purchase of the L Stud property or at all.

Within ninety (90) days, the husband pay to the wife the sum of $517,000.

If the husband should fail to pay to the wife all or any of the sum of $517,000 in accordance with Order (6) above, the husband will at his expense forthwith take all necessary steps to sell the property known as the Gold Coast Unit, Queensland, and the L Stud property in New South Wales, and will sign all documents to effect such sale(s) and upon completion will pay such the net proceeds therefrom as may be necessary to satisfy the terms of Order (6) (including interest).

(a) If the husband should fail within thirty (30) days after the period stipulated in Order (6) above (on the certification in writing by the wife or her solicitors that the husband has so failed) to execute (or sign) any document or to perform any action required in relation to such sale(s), then pursuant to s 106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia is appointed to sign such documents or perform such action in the husband’s stead.

Otherwise, each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control including the units at P, Queensland which are owned by the wife (unit ‘P2’) and husband (unit ‘P1’) respectively.

That all extant applications, save as to the any fresh application the parties may wish to make in relation to the question of costs filed before 4.00 pm on 19 April 2010, are discharged.

10.

The matter is removed from the pending cases list, save as to any fresh application the parties may wish to make in relation to the question of costs filed before 4.00 pm on 19 April 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.