FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANNAN & BANNAN | [2012] FMCAfam 1056 |
| FAMILY LAW – Property – contribution – declaration of superannuation interest. |
| Family Law Act 1975, ss.75(2), 79, 90MT,(1)(a), 90SM, 106A |
| Hickey and Hickey (2003) FLC 93-143 In the marriage of Lee Steere (1985) FLC 91-626 In the marriage of Ferraro (1993) FLC 92-335 In the marriage of Clauson (1995) FLC 92-595 Russell and Russell [1999] FamCA 1875; (1999) FLC 92-877 Pierce and Pierce (1999) FLC 92-844 Kowaliw (1981) FLC 91-092 Esposito & Coster [2012] FamCAFC 118 Gosper and Gosper (1987) FLC 91-818 Kessey and Kessey (1994) FLC 92-495 Pellegrino and Pellegrino (1997) FLC 92-789 |
| Applicant: | MS BANNAN |
| Respondent: | MR BANNAN |
| File Number: | NCC 1366 of 2010 |
| Judgment of: | Myers FM |
| Hearing date: | 17 July 2012 |
| Date of Last Submission: | 17 July 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Respondent: | BTF Lawyers |
ORDERS
That all previous orders be discharged.
That within 14 days from the date of these orders the applicant wife and the respondent husband do all acts and things and sign all documents necessary to list the former matrimonial home situated at and known as “[B]” via [omitted] being the whole of the land being contained in [lots omitted] to be listed for sale with the with a real estate agent as agreed between the parties and failing agreement with the office of The Professionals Real Estate nearest in geographical location to the said former matrimonial home.
That within 7 days the parties do all acts and things to authorise, direct and assist [company and address omitted], to prepare contacts for and act on the sale of the said former matrimonial home.
That the sale price of the said former matrimonial home shall be as agreed between the parties within seven (7) days from the date of these orders and failing agreement as advised by a Valuer nominated by the President of the Real Estate Institute of New South Wales.
That should the former matrimonial home fail to have sold by private treaty within 12 weeks from the date of these orders, or such other time as agreed between the parties in writing, then the parties will do all acts and things an sign all documents necessary to cause the said former matrimonial home to be sold by public auction on the 17th Saturday following the making of these orders or at such other time as agreed between the parties in writing.
That should the said former matrimonial home fail to sell at the auction contemplated at order 5 above the parties will do all acts and things and sign all documents necessary to cause the former matrimonial home to be auctioned on the 4th Saturday following the preceding auction and then every 4th Saturday thereafter until the said former matrimonial home is sold.
That the reserve price of the first auction shall be as agreed between the parties in writing and…
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- AGLC
- BANNAN & BANNAN [2012] FMCAfam 1056
- Case
- [2012] FMCAfam 1056
- Decision Date
CaseChat Overview and Summary
In delivering the judgment, the court examined the evidence provided by both parties regarding their contributions to the acquisition and maintenance of the former matrimonial home, as well as their respective financial situations post-separation. The court also considered the implications of the wife’s role as a director of companies operated by the husband and the potential liabilities arising from this role. The court determined that an equitable division of the assets would involve the sale of the former matrimonial home under specified conditions, with proceeds allocated towards outstanding debts and personal loans. Additionally, the court ordered a splitting of $10,000 from the wife’s superannuation interest to the husband, subject to procedural fairness being afforded to the wife’s superannuation trustee.
The court issued comprehensive orders to facilitate the sale of the former matrimonial home, including specific timelines and conditions for the auction process if the home did not sell by private treaty. The court also outlined the distribution of the sale proceeds and the respective liabilities of the parties in the event of a shortfall. Furthermore, the court mandated that the husband provide procedural fairness to the wife’s superannuation trustee and ordered an adjournment to allow for this process. The final orders declared each party as the sole beneficial owner of their respective property and investments, with provisions for enforcement should either party fail to comply with the court’s directives.
Orders
Orders of the court
1.
That all previous orders be discharged.
2.
That within 14 days from the date of these orders the applicant wife and the respondent husband do all acts and things and sign all documents necessary to list the former matrimonial home situated at and known as “[B]” via [omitted] being the whole of the land being contained in [lots omitted] to be listed for sale with the with a real estate agent as agreed between the parties and failing agreement with the office of The Professionals Real Estate nearest in geographical location to the said former matrimonial home.
3.
That within 7 days the parties do all acts and things to authorise, direct and assist [company and address omitted], to prepare contacts for and act on the sale of the said former matrimonial home.
4.
That the sale price of the said former matrimonial home shall be as agreed between the parties within seven (7) days from the date of these orders and failing agreement as advised by a Valuer nominated by the President of the Real Estate Institute of New South Wales.
5.
That should the former matrimonial home fail to have sold by private treaty within 12 weeks from the date of these orders, or such other time as agreed between the parties in writing, then the parties will do all acts and things an sign all documents necessary to cause the said former matrimonial home to be sold by public auction on the 17th Saturday following the making of these orders or at such other time as agreed between the parties in writing.
6.
That should the said former matrimonial home fail to sell at the auction contemplated at order 5 above the parties will do all acts and things and sign all documents necessary to cause the former matrimonial home to be auctioned on the 4th Saturday following the preceding auction and then every 4th Saturday thereafter until the said former matrimonial home is sold.
7.
That the reserve price of the first auction shall be as agreed between the parties in writing and failing agreement at a price suggested by the auctioneer engaged by the real estate agent nominated pursuant to order 2 above, and the reserve price of every subsequent auction shall be 2.5% blower than the reserve price of the immediately preceding auction.
8.
That pending the settlement of the sale of the former matrimonial home the wife shall have the right to exclusive occupancy of the said former matrimonial home to the exclusion of the husband subject to her paying mortgage payments when they fall due, council rates and household building insurances.
9.
During the period of the wife’s exclusive occupation the wife shall keep the former matrimonial home in a clean and tidy condition and in good state of repair having regard to its present condition allowing all agents and prospective purchases to inspect the former matrimonial home at all reasonable times.
10.
On completion of sale the proceeds be disbursed as follows:
(a) Payment of agents commission, advertising expenses and legal expenses of the sale;
(b) Rates adjustments;
(c) Discharge of mortgage to the Commonwealth Bank of Australia, mortgage number: BSB [omitted] account number: [1];
(d) Payment to the following Commonwealth Bank loans:
(i) Personal loan BSB [omitted] account number [2];
(ii) Personal loan BSB [omitted] account number [3];
(iii) BSB [omitted] account number [4];
(e) Subject to order 11 below the residue from the sale if any to be paid to the wife.
11.
Seven (7) days following the exchange of contracts for the sale of the said former matrimonial home the parties shall instruct [omitted] to obtain a payout from the Commonwealth Bank of the loans listed at orders 10(c) and 10(d) above, and make enquiries to ascertain the quantum of the other liabilities listed at orders 10(a), and 10(b) above and thereafter provide the parties with an estimate for any net proceeds from the sale or shortfall on the sale. Where there is a shortfall on the sale the parties shall be equally liable for any shortfall taking into account all those liabilities listed at orders 10(a) – 10(d).
12.
That where the parties are advised by [omitted] that there will be a shortfall on the sale, the parties are within 7 days of such notification arrange to obtain fund necessary to pay out half of any shortfall equally and 7 days prior to settlement of the sale the parties are to pay into the trust account of the said conveyancer one half of the estimated shortfall and irrevocably authorise and direct the said conveyancer to use such funds to payout the liabilities listed at orders 10(a) – 10(d) on settlement of the said former matrimonial home.
13.
That should the estimate given to the parties pursuant to order 11 above be insufficient to allow for a payout of the liabilities listed at orders 10(a) -10(d) on settlement then the parties shall equally contribute to any further shortfall. Where there is a surplus of funds paid into the trust account by the parties pursuant to order 12 above such surplus shall be paid equally between the parties.
14.
That the husband indemnify and keep indemnified the wife against any claims, demands or proceedings which may be instituted against her as a result of the wife having acted as a director of companies operated by the husband and otherwise each party indemnify the other against all actions, suites, claims or demand in relation to any other liabilities standing in that parties name or any other liability encumbering any item of property to which that party is entitled.
15.
That within 7 days from the date of these orders the husband cause a letter to be forwarded to the trustee of wife’s superannuation fund namely Employer Agreed Superannuation Plan operated by [H] providing the wife’s superannuation fund with procedural fairness of orders in the terms set out at order 2 of the husband’s Response to Initiating Application files 10 May 2012 that provide for a payment of $10,000.00 from the wife’s superannuation by way of splitting order.
16.
That the matter be adjourned to a date to be fixed by the court so as to allow sufficient time for procedural fairness to be afforded to the wife’s superannuation trustee and the wife’s cost of such adjournment shall be reserved.
17.
That upon the matter coming back before the court following the adjournment the court will consider whether procedural fairness has been afforded by the husband to the wife’s superannuation trustee and will thereafter consider any response received by the wife’s superannuation trustee and make orders for a splitting order paying $10,000.00 from the wife’s superannuation interest to the husband pursuant to section 90MT(1)(a) of the Family Law Act 1975.
18.
That otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all items of property including chattels, goods, furnishings and other property which at the date of the orders are in that parties possession, monies and other investments which stand in that parties name, any motor vehicles in that parties name and their respective superannuation entitlements.
19.
That in the event either party refuses to or neglects to execute any document or instrument including real property transfer, within 7 days of a written request to do so, necessary to give effect to these orders a Registrar of this Court is appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of the party who has refused or neglected to execute such document or instrument and do any other acts or things necessary so as to allow for the operation of these orders.
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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