Bania & Jacopo (No 2) - [2011] FamCAFC 139

FAMILY COURT OF AUSTRALIA

BANIA & JACOPO (NO. 2)

[2011] FamCAFC 139

FAMILY LAW - APPEAL – PROPERTY – Value of property – Where property comprised two lots of adjoining land purchased after separation – Whether the Federal Magistrate failed to take into account or properly take into account the value of the combined lots – Whether the Federal Magistrate erred in the exercise of his discretion – Error established – Whether the Federal Magistrate erred in finding the wife made no contribution to the acquisition of one lot of land – Whether the Federal Magistrate failed to take into account or to properly take into account the disparity in financial resources of the parties – Whether the Federal Magistrate erred in taking into consideration questions of delay – No error established.
FAMILY LAW - REDETERMINATION – Wife awarded 30% of the value of the land.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

GWR and VAR [2006] FamCA 894
House v The King (1936) 55 CLR 499
Manolis and Manolis (No 2) [2011] FamCAFC 105
Wall and Wall (2002) FLC 93-110

APPELLANT:

Ms Bania

RESPONDENT:

Mr Jacopo

FILE NUMBER:

PAC

3577

2009

APPEAL NUMBER:

121

2010

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

26 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 August 2010

LOWER COURT MNC:

[2010] FMCAfam 1080

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Coleman & Greig Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Thurlow Fisher Lawyers & Consultants

Orders

That the appeal be allowed.
That the orders of Federal Magistrate Donald made on 25 August 2010 be set aside and in lieu thereof it is ordered that:
The husband pay to the wife the sum of $45,000 as follows:-
(a) Forthwith upon the making of these Orders with the payment to be made out of such monies held by his solicitors pursuant to the Interim Orders of this Court.
(b) As to the balance within 28 days of the date of these Orders.
In the event that the husband fails or neglects to pay the sum of $45,000 (or such lesser sum after payment from his solicitors trust account) the husband shall do all acts and things necessary to sell the property situate at and known as 19 (Lots 10 and 11) Station Street, B and in respect of such sale the following shall apply:-
(a)       The property shall be sold at the best price reasonably obtainable.
(b)       In the event of a dispute as to the best price reasonably obtainable then the parties shall appoint the President for the time being of the Real Estate Institute of New South Wales to assess the best price reasonably obtainable and/or the reserve price at auction.
(c)       In the event the property is not subject to a binding agreement for sale within 90 days of the date…

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 Bania & Jacopo (No 2)

Details

AGLC: Bania & Jacopo (No 2) [2011] FamCAFC 139
Case: [2011] FamCAFC 139
Decision Date: 29 June 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bania & Jacopo (No 2) involved a dispute between the husband and the wife concerning the division of their marital assets. The wife appealed against the orders made by the Federal Magistrate, seeking a reconsideration of the property settlement and associated financial obligations. The court was tasked with determining whether the initial orders were just and equitable, and if not, to make new orders that better reflected the contributions and needs of the parties. The appeal hinged on the interpretation of the Family Law Act and the principles of fairness in the division of assets following a marriage dissolution.

The court had to address several legal issues, including the proper valuation of the marital home and the fairness of the initial settlement orders. The wife argued that the Federal Magistrate had undervalued the property and that the settlement did not adequately reflect her contributions to the marriage. The husband contended that the orders were fair and that the wife's appeal was without merit. The court had to consider the evidence presented regarding the property's value, the contributions of each spouse, and the implications of the settlement for both parties.

In its reasoning, the court found that the Federal Magistrate had indeed undervalued the marital home and that the initial settlement orders were not equitable. The court ordered that the husband pay the wife $45,000, with specific provisions for the payment and a mechanism for the sale of the property if the payment was not made. The court also clarified the ownership of household contents and vehicles and imposed restrictions on the husband's ability to encumber the property pending its sale. The wife was permitted to lodge a caveat to protect her interests. The court's decision emphasised the need for a fair and just division of marital assets, taking into account the specific circumstances of each case.

Orders

Orders of the court

That the appeal be allowed.

That the orders of Federal Magistrate Donald made on 25 August 2010 be set aside and in lieu thereof it is ordered that:

The husband pay to the wife the sum of $45,000 as follows:-

(a) Forthwith upon the making of these Orders with the payment to be made out of such monies held by his solicitors pursuant to the Interim Orders of this Court.

(b) As to the balance within 28 days of the date of these Orders.

In the event that the husband fails or neglects to pay the sum of $45,000 (or such lesser sum after payment from his solicitors trust account) the husband shall do all acts and things necessary to sell the property situate at and known as 19 (Lots 10 and 11) Station Street, B and in respect of such sale the following shall apply:-

(a) The property shall be sold at the best price reasonably obtainable.

(b) In the event of a dispute as to the best price reasonably obtainable then the parties shall appoint the President for the time being of the Real Estate Institute of New South Wales to assess the best price reasonably obtainable and/or the reserve price at auction.

(c) In the event the property is not subject to a binding agreement for sale within 90 days of the date of these Orders then the wife shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property by way of public auction at a reserve price agreed between the parties.

(d) Upon sale the then proceeds shall be paid as follows:-

(i) In the payment of agents commission and legal fees occasioned by the sale.

(ii) In payment to the wife of the sum of $45,000 (or such lesser sum after payment from the husband’s solicitors trust account) together with interest from the date of default.

(iii) The balance to the husband.

Each party is declared to be the sole and beneficial owner of any item of household contents and/or motor vehicles in such party’s possession and/or control.

Pending the sale of the B property the husband is restrained from encumbering and/or further encumbering the property.

The wife is at liberty pending compliance with Order 4 to lodge a caveat to protect her entitlement pursuant to these Orders and the husband is restrained from doing any act or thing requiring the removal of the caveat other than for the purpose of compliance with these orders.

Any submissions as to costs on the appeal be submitted within 14 days.

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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