FEDERAL CIRCUIT COURT OF AUSTRALIA
Batta & Batta [2020] FCCA 3637
File number(s): MLC 694 of 2018 Judgment of: JUDGE STEWART Date of judgment: 11 December 2020 Catchwords: FAMILY LAW – property – contributions – Kennon claim – long marriage – post separation contributions Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 75, 75(2)(o)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Gosper and Gosper [1987] FamCA 43
Grier & Malphas [2016] FamCAFC 84
Kennon & Kennon [1997] FamCA 27
AJO & GRO [2005] FamCA 195
Number of paragraphs: 64 Date of hearing: 7-9 December 2020 Place: Dandenong Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: MMH Lawyers ORDERS
MLC 694 of 2018 BETWEEN: MR BATTA
Applicant
AND: MS BATTA
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
15 DECEMBER 2020
THE COURT ORDERS THAT:
1.Final orders are made in accordance with the Minute of Order dated 15 December 2020, marked with the letter “A” and annexed hereto.
2.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
“A”
1.On or before 9 February 2021 (“the Date”) the Wife pay to the Husband the sum of $202,500 ("the Payment") by way of transfer to Pearsons Lawyers Trust Account.
2.Contemporaneously with the Payment:
(a)The Husband shall sign all documents to transfer to the Wife, at the expense of the Wife, all of his right, title and interest in the real property situate at, and known as, Property C in the State of Victoria being the whole of land more particularly described in Certificate of Title Volume “…” Folio “…” (“the Property”); and
(b)The Wife shall refinance the mortgage(s) encumbering the Property so that the Husband has no liability in relation thereto and he is released from any guarantees or other obligations in relation thereto.
3.In the event that either the Payment is not made by the Date, or the provisions of Order 2.b. herein are not complied with, the parties shall forthwith do all such acts and things as may be required to cause the Property to be sold by public auction (“the Sale”) at the earliest possible date.
4.For the purposes of the Sale:
(a)F Real Estate be appointed as the selling agent of the Property;
(b)The parties shall jointly appoint a conveyancer/solicitor to act in relation to the sale of the Property within 14 days of the date of these Orders, failing which a conveyancer/solicitor shall be appointed at the direction of the selling agent;
(c)The reserve price of the Property be set at $725,000 unless otherwise agreed between the parties in writing; and
(d)The parties have liberty to apply to the Court in writing in relation to the Sale.
5.That the proceeds of the Sale of the Property be disbursed as follows:
(a)First, to pay all costs, commissions and expenses of the Sale;
(b)Second, to discharge…
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CaseChat Overview and Summary
The court was required to determine the terms of the final property settlement between the parties. This involved establishing a mechanism for the transfer of the Husband's interest in the Property to the Wife, including the financial considerations and the discharge of any existing mortgage liabilities. The court also needed to address the contingency of non-compliance with the agreed terms, including provisions for the sale of the Property.
Stewart J made final orders in accordance with a Minute of Order agreed by the parties. The Wife was ordered to pay the Husband $202,500 by a specified date. Contemporaneously, the Husband was to transfer his interest in the Property to the Wife, and the Wife was to refinance the mortgage to release the Husband from all liability. In the event of non-compliance with these terms, the Property was to be sold by public auction. The orders further detailed the process for the sale, including the appointment of a selling agent, the setting of a reserve price, and the disbursement of sale proceeds. The Wife was granted sole occupancy of the Property pending sale, with specific responsibilities for outgoings and maintenance, and was to indemnify the Husband against related claims. Provisions were also made for the division of other property and liabilities, the severance of joint tenancies, and the return of family photographs.
Orders
Orders of the court
MLC 694 of 2018
BETWEEN:
MR BATTA
Applicant
AND:
MS BATTA
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
15 DECEMBER 2020
THE COURT ORDERS THAT:
1. Final orders are made in accordance with the Minute of Order dated 15 December 2020, marked with the letter “A” and annexed hereto.
2. All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
“A”
1. On or before 9 February 2021 (“the Date”) the Wife pay to the Husband the sum of $202,500 ("the Payment") by way of transfer to Pearsons Lawyers Trust Account.
2. Contemporaneously with the Payment:
(a) The Husband shall sign all documents to transfer to the Wife, at the expense of the Wife, all of his right, title and interest in the real property situate at, and known as, Property C in the State of Victoria being the whole of land more particularly described in Certificate of Title Volume “…” Folio “…” (“the Property”); and
(b) The Wife shall refinance the mortgage(s) encumbering the Property so that the Husband has no liability in relation thereto and he is released from any guarantees or other obligations in relation thereto.
3. In the event that either the Payment is not made by the Date, or the provisions of Order 2.b. herein are not complied with, the parties shall forthwith do all such acts and things as may be required to cause the Property to be sold by public auction (“the Sale”) at the earliest possible date.
4. For the purposes of the Sale:
(a) F Real Estate be appointed as the selling agent of the Property;
(b) The parties shall jointly appoint a conveyancer/solicitor to act in relation to the sale of the Property within 14 days of the date of these Orders, failing which a conveyancer/solicitor shall be appointed at the direction of the selling agent;
(c) The reserve price of the Property be set at $725,000 unless otherwise agreed between the parties in writing; and
(d) The parties have liberty to apply to the Court in writing in relation to the Sale.
5. That the proceeds of the Sale of the Property be disbursed as follows:
(a) First, to pay all costs, commissions and expenses of the Sale;
(b) Second, to discharge the mortgage(s) and any other encumbrances affecting the Property other than any Caveats lodged by the parties or on behalf of the parties by their respective solicitors;
(c) Third, to pay to the Husband such amount of the Payment as remains outstanding, such payment to be made to Pearsons Lawyers Trust Account;
(d) Fourth, to pay to the Husband an amount of interest calculated in accordance with the Family Law Rules on such amount of the Payment as was not paid by the Date, as calculated from the Date until the date of payment, such payment to be made to Pearsons Lawyers Trust Account; and
(e) Fifth, the balance to the Wife.
6. That pending the sale of the Property:-
(a) The Wife have sole occupancy of the Property and shall be solely liable for all outgoings of the Property, including but not limited to, all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due;
(b) The Wife shall indemnify the Husband against all claims, demands, proceedings and judgements in respect of liability pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind;
(c) The Wife shall do all things necessary to comply with Order 3 as soon as practicable, including cooperating with the Husband to reach agreement in relation to all aspects of the Sale;
(d) The Wife shall cooperate and take all necessary steps and execute all necessary documents as reasonably necessary to facilitate any inspections of the Property by the selling agent and potential purchasers;
(e) The Wife shall maintain the Property, including but not limited to keeping the Property in a tidy and presentable condition for Sale;
(f) Other than to facilitate compliance with these Orders, neither party shall further encumber the Property without the consent in writing of the other party;
(g) The joint tenancy of the Property is hereby expressly severed; and
(h) Each party shall hold their respective interests in the Property on trust in accordance with the provisions of these Orders.
7. Should the Wife fail to comply with paragraph 6 hereof, the Husband shall have sole occupancy of the Property for the purposes of facilitating the Sale and the Husband shall:
(a) Be solely liable for all outgoings of the Property, including but not limited to, all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind applicable for the period of time in which he has sole occupancy only and ensure that all payments are made as and when they fall due;
(b) Cooperate and take all necessary steps and execute all necessary documents as reasonably necessary to facilitate any inspections of the Property by the selling agent and potential purchasers; and
(c) Maintain the Property, including but not limited to keeping the Property in a tidy and presentable condition for the Sale.
8. Within 28 days of the date hereof the Wife make available to the Husband (by delivering the same to the Husband’s solicitors) the originals of all family photographs which may be copied by him at his expense and returned to the Wife within 28 days thereafter in the same condition as they were provided to the Husband.
9. That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent Orders:-
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these Orders save as provided for in these Orders;
(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c) Any money standing to credit any joint accounts of the parties is to be divided equally between the parties;
(d) Each party hereby forgoes any claim they may have to any superannuation benefit and /or any interest in any trust or deceased estate that is payable to or belonging to or owned by the other save as provided for in these Orders;
(e) All insurance policies are to become the sole property of the owner named therein;
(f) Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(g) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
10. That the Husband and Wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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Evidence Before The Court
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