BALFOUR and BALFOUR - [2024] FCWA 48

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BALFOUR and BALFOUR [2024] FCWA 48
CORAM: BERRY J
HEARD: 20-24 FEBRUARY 2023
DELIVERED : 29 FEBRUARY 2024
FILE NO/S: 7188 of 2016
BETWEEN: MS BALFOUR
Applicant
AND
MR BALFOUR
First Respondent
THE BANK
Second Respondent

Catchwords:
FINANCIAL - Where the wife seeks orders that the husband pay her the sum of $3,200,000 within 60 days and in default of payment she be appointed sole trustee for the sale of three parcels of farming land owned by entities under the control of the husband - Where the husband opposes this aspect of the application and seeks orders to pay the wife the sum of $1,000,000 within six months - Where the husband acts as sole director in respect a corporate trustee that he caused to commence proceedings in the Supreme Court of Western Australia against the Second Respondent in February 2018 - Where the marital parties are joint guarantors of loans the subject of the Supreme Court proceedings - Where the Second Respondent filed a defence and joined the wife to the Supreme Court proceedings as Fourth Defendant by counter-claim in her capacity as personal guarantor for the debt owing to the Second Respondent - Where the wife has had no active role in and does not support the prosecution of the Supreme Court proceedings by the husband and his entities - Where the wife seeks orders that the husband be substituted as sole guarantor in respect of the loans made by the Second Respondent and that the Second Respondent remove her as a party to the Supreme Court proceedings - Where debts to the Second Respondent are secured by first registered mortgages over property held by the husband and his entities - Where Court satisfied that the parties' respective contributions should be assessed equally - Where the husband continues to work as a farmer and the wife continues to operate her own building design business - Where the marital parties agree and the Court is satisfied that the husband and his entities should be solely responsible for the ongoing costs, benefits and burdens of the Supreme Court proceedings - Case turns on its own facts
Legislation:
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:

Applicant : Mr R Hooper SC

First Respondent : Mr M Rynne

Second Respondent : Mr J Hedges SC
Solicitors:

Applicant : ASB Law

First Respondent : KDK Family Law

Second Respondent : Corrs Chambers Westgarth
Case(s) referred to in decision(s):
AC & VC (2013) FLC 93-540
Candle v Falkner (2021) FLC 94-069
Cook & Langford (2008) FLC 93-374
Elgin v Elgin (2015) 54 Fam LR 31
Jabour & Jabour (2019) FLC 93-898
Kane & Kane (2013) FLC 93-569
Lovine & Connor and Anor (2012) FLC 93-515
Norbis v Norbis (1986) 161 CLR 513
Robb & Robb (1995) FLC 92-555
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) 247 CLR 108
Trevi…

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 BALFOUR and BALFOUR

Details

AGLC: BALFOUR and BALFOUR [2024] FCWA 48
Case: [2024] FCWA 48
Decision Date: 29 FEBRUARY 2024

CaseChat Overview and Summary

In the matter of Balfour and Balfour, the wife applied for orders that the husband pay her $3,200,000 within 60 days, and in default of payment, she be appointed sole trustee for the sale of three parcels of farming land owned by entities under the control of the husband. The husband opposed this aspect of the application and sought orders that he pay the wife $1,000,000 within six months. The husband is the sole director of a corporate trustee that initiated proceedings in the Supreme Court of Western Australia against the Second Respondent in February 2018. The marital parties are joint guarantors of the loans that are the subject of the Supreme Court proceedings. The Second Respondent filed a defence and joined the wife as the Fourth Defendant by counter-claiming in her capacity as a personal guarantor for the debt owed to the Second Respondent. The wife has had no active role in and does not support the prosecution of the Supreme Court proceedings by the husband and his entities. She further seeks orders that the husband be substituted as the sole guarantor in respect of the loans made by the Second Respondent and that the Second Respondent remove her as a party to the Supreme Court proceedings. The debts to the Second Respondent are secured by first registered mortgages over property held by the husband and his entities.

The legal issues before the court were whether the wife was entitled to be paid $3,200,000, whether the husband should be substituted as the sole guarantor in respect of the loans made by the Second Respondent, and whether the Second Respondent should remove the wife as a party to the Supreme Court proceedings. The court was required to assess the respective contributions of the parties and determine whether the husband and his entities should be solely responsible for the ongoing costs, benefits, and burdens of the Supreme Court proceedings.

The court found that the parties' respective contributions should be assessed equally. The court held that the husband continues to work as a farmer, and the wife continues to operate her own building design business. The court was satisfied that the husband and his entities should be solely responsible for the ongoing costs, benefits, and burdens of the Supreme Court proceedings. The court held that the wife had no active role in and did not support the prosecution of the Supreme Court proceedings by the husband and his entities. The court was satisfied that the wife was not entitled to be paid $3,200,000, but she was entitled to be paid $1,000,000 within six months. The court held that the husband should be substituted as the sole guarantor in respect of the loans made by the Second Respondent, and the Second Respondent should remove the wife as a party to the Supreme Court proceedings.

The court ordered that the husband pay the wife $1,000,000 within six months. The court also ordered that the husband be substituted as the sole guarantor in respect of the loans made by the Second Respondent and that the Second Respondent remove the wife as a party to the Supreme Court proceedings.

Orders