BENETTI & BENETTI

[2018] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENETTI & BENETTI [2018] FCCA 1661

Catchwords:

FAMILY LAW – Matrimonial property – uneven contribution – future health– uncertainty of husband taken into account – wife in good health and able to enjoy full employment in the future – monetary payment to wife in accordance with just and equitable principles – orders accordingly.

Legislation:

Family Law Act 1975 (Cth), ss.66, 72, 75, 79, 81

Uniform Civil Procedure Rules 1999 (Qld), rr.657C, 657E, 657F

Cases cited:

In the marriage of Robb (1995) FLC 92–555

Jones v Dunkel [1959] HCA 8

McArdle & McArdle (1951) 1 ALR 905

Martin v Newton (2011) 47 Fam LR 1

Applicant: MS BENETTI

Respondent: MR BENETTI

File Number: BRC 8228 of 2016

Judgment of: Judge Egan

Hearing dates: 24 & 25 May 2018

Date of Last Submission: 25 May 2018

Delivered at: Brisbane

Delivered on: 12 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Shoebridge

Solicitors for the Applicant: Barry Nilsson Lawyers

Respondent: Self-Represented

ORDERS

1. That the husband pay the sum of seventy thousand dollars ($70,000) to the wife by way of final property adjustment order.

2. That such payment be made within three (3) months of the date hereof, such payment to constitute full and final satisfaction of the wife’s claims.

3. That the parties respectively retain absolutely such remaining property as is in their power, possession or control as at the date of these Orders, such property to include monies in bank accounts and their respective Superannuation assets.

IT IS NOTED that publication of this judgment under the pseudonym Benetti & Benetti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8228 of 2016

MS BENETTI

Applicant

And

MR BENETTI

Respondent

REASONS FOR JUDGMENT

DELIVERED EX PARTE

1. I have before me applications on the part of each of the husband and the wife for property-adjustment orders.  The relevant orders sought by the husband are contained in a Further Amended Initiating Application filed in the court on 16 February 2018.  Relevantly, that amended initiating application seeks that the wife’s response filed on 14 October 2016 be dismissed, secondly that each party be declared the sole and beneficial owner of any property presently in their possession or control, including but not limited to superannuation entitlements, and thirdly, that the wife pay the husband’s costs of and incidental to these proceedings. 

2. The response filed on behalf of the wife on 14 October 2016, insofar as it related to applications for property-adjustment orders pursuant to Section 79 of the Family Law Act 1975 (Cth) (“the Act”), sought an order that an account be taken of the net assets of the husband and the wife, and that there be a division of the net assets, including superannuation, in the proportion of no less than sixty-five per cent (65%) of the value of the net assets to the wife.

3. The husband and the wife commenced living together in about …2007.  They were married on …2008 and they separated on a final basis in about February of 2016.  Accordingly, their relationship was one of approximately nine years.  There are three children of the marriage, namely  [X], born on …2008 - he is approximately 10 years of age; [Y], born on …2009 - he is approximately eight and a half years of age;  and [Z], born on …2011 - he is approximately seven years of age. 

4. There is another child, who was born of a prior union between the wife and another person, called [A], who was born on …2001.  That child is nearly 17 years of age.  She continues to live fulltime with the father, having done so since the date of separation of the parties.  The reason for her having done so was that she expressed a desire that she wished to continue to live with the husband, as it would not interfere with her schooling.  The husband cares for the child [A] and has done so admirably in all respects since separation.  There is no suggestion that he will not continue to do so into the future.  She works part-time at a business run by the husband from the husband’s home premises and receives some, though little, money from such exercise. 

5. The other three children spend time equally between the husband and the wife.  The husband describes himself as a tradesman, but he was involved in a motor-vehicle accident, which has, on his allegations, resulted in him suffering psychological damage.  He presently receives Centrelink benefits.  The wife is quick with child and soon to give birth.  That child is of the union between herself and another partner, who, on the evidence, earns approximately one thousand, three hundred dollars ($1300.00) per week.  The wife has for some time been working up to twenty-three (23) to thirty-three (33) hours per week as a manager of a business franchise.  There is no reason to doubt that the wife, in the future, will be able to continue to work in such capacity after she has given birth to her pending arrival.  The wife has some modest superannuation entitlement.  She has an entitlement of approximately three thousand, five hundred and ten dollars and seventy-six cents ($3510.76) with a fund named Super Fund 1.  She also has an entitlement in the amount of six thousand, two hundred and twenty-four dollars ($6224.00) in a fund called Super Fund 2. 

6. The wife earns between thirty-two thousand ($32,000.00) to thirty-three thousand dollars ($33,000.00) per year gross from her management of the business franchise.  She alleges that she has not received child support from the husband in respect of the three boys of her relationship with the husband.  I accept her evidence that though she did not provide other than modest financial contributions during the course of the marriage, she did provide, in an efficient manner, domestic services, and that the husband and the three children of the marriage, as well as her own child, [A], were well cared for during the marital relationship. 

7. I also accept her evidence that, as and when required, she would carry out maintenance on what is a large property situated at Suburb D in Brisbane.  Activities in which she was involved included mowing grass, cleaning up palm trees, generally cleaning up sheds, and the like.  I also accept that the husband worked to his full capacity up until the time that he had his motor vehicle accident. 

8. In terms of the relevant health scenarios of each of the husband and the wife, the wife, in my assessment, has good health, and she is likely to remain in good health for the rest of her years.  The husband, on the other hand, has an uncertain future, which will no doubt be dogged by what seems to be a condition, a psychological condition, of concern.  I am uncertain as to what the future holds for the husband. 

9. The husband is the sole registered proprietor of an acreage property situated at Property B in Brisbane.  The value of that property I find to be in the order of one million, one hundred thousand dollars ($1,100,000). There are a number of motor vehicles which might be considered as matrimonial property, those specifically being a Motor Vehicle 1 and a Motor Vehicle 2.  The total value of those two assets is small, and I would fix values to them in that regard, in total, as being in the amount of approximately two thousand, five hundred dollars ($2500.00). 

10. The husband has deposed to his having in his possession, power and control, household furniture, plant and equipment valued at approximately fifty-seven thousand, four hundred and seventy dollars ($57,470.00) and I accept that as being an accurate valuation for the purposes of these proceedings. 

11. The wife deposes to her having household furniture valued in the amount of four thousand, four hundred and eighty-five dollars ($4,485.00).  I have already referred to the wife’s superannuation benefit entitlement.  The husband’s Super Fund 2 has funds in it to which the husband is beneficially entitled in the amount of sixteen thousand, seven hundred and thirty-eight dollars ($16,738.00).  It is not in dispute that there is a Westpac home loan secured over the Property B property, and that the debt at the current time is in the order of four hundred and ninety-nine thousand dollars ($499,000.00). 

Husband’s debt

1. During the course of the trial, there was much time taken up in evidence with what were said to be debts owed by the husband.  The first debt was a debt variously calculated to be in the amount of approximately four hundred and eight thousand dollars ($408,000.00) on the most generous view.  The second debt was a debt alleged to be due to Business L in the amount of seventy-six thousand, five hundred dollars ($76,500.00).  The third debt was a debt alleged to be due to Business M in the amount of forty-seven thousand, five hundred and twenty-one dollars ($47,521.00). 

2. Turning first to the evidence of the husband relating to the Business M service debt, there is no corroborating evidence of the existence of any such debt.  It is the case that though the husband was in a position to call someone to verify the debt, as was the case with the alleged debt due to Business L, the husband failed to do so. In circumstances where invoices produced were not the subject of corroboration, I am unprepared to accept the validity of such debt.  I therefore exclude that debt from any consideration for the purposes of property adjustment in this matter. 

3. In terms of the alleged debt due to Business L, I accept the husband’s evidence, and the evidence of Mr E, that a substantial amount of work was performed by Mr E in the retrieval and removal of junk and other detritus situated in and about the Property B property over time. 

4. I further accept that of the total amount due to Mr E, that debt is being notionally paid off in the amount of nine thousand dollars ($9000) per year in consideration of the husband allowing Mr E to use part of the Property B property for the storage of heavy equipment.  When questioned about the cost of nine thousand dollars ($9000.00) per annum being reduced as part of the debt owed by Mr Benetti to Mr E on an annual basis, Mr E gave sensible evidence, which I accept, to the effect that the amount of nine thousand dollars ($9000) is far less than the amount which would be paid for commercial premises, but which is nevertheless a reasonable sum in all the circumstances. 

5. To the extent, however, that that is a debt which I recognise as being payable by the husband, it must be acknowledged that the husband does not have to do anything in order to enable that debt to be paid off on an annual basis, save for his continuing to meet mortgage payments, and his continuing obligation to pay council rates such that the property, in part, remains available for the storage of Mr E’s heavy equipment.  I find, in that regard, that though the notional sum of nine thousand dollars ($9000) is paid by way of reduction of debt on an annual basis, that notional payment of debt is not sourced from either the husband’s earnings or other entitlements. 

6. As to the alleged debt owing to Mr F, the origins of such alleged debt are confusing.  Mr F is a long-time family friend of the husband’s father who died in 2003.  Mr F swore an affidavit on 13 June 2017 by which certain acknowledgements of debt and other documents allegedly signifying financial transactions were annexed.  The first document is referred to as annexure A.  Annexure A to that affidavit is sworn by Mr F as being an acknowledgement of debt as at 29 July 1996 in the amount of one hundred and thirty-one thousand, two hundred and ten dollars ($131,210).  That is the amount of debt then said to have been owed by the husband’s father to him. 

7. Mr F has asserted that there were further borrowings by the deceased father of the husband which increased such indebtedness beyond two hundred thousand dollars ($200,000).  It is a fact that at the time of the death of Mr Benetti Senior, he, Benetti, was a bankrupt.  Annexure B to that affidavit of Mr F is a lease in respect of the Property B property, the term of which was said to have commenced on 18 August 1992, and ending on 18 August 2017. 

8. Like much of the evidence adduced on behalf of the husband and Mr F in this matter, there is no explanation as to why the lease was said to have commenced in August 1992 in respect of any particular amount of money which might have been then owed by Mr Benetti Senior to Mr F, or at least alleged to be owed to Mr F at that time.  I am not satisfied that the amount of money said to be owed by Mr Benetti Senior as at July 1996 was in fact a true indebtedness because of the lack of corroborating evidence adduced in that regard. 

9. There is a further document, being annexure D, to the affidavit of Mr F, filed on 15 June 2017, which purports to be a lease between him and the husband dated 7 May 2010 for a term commencing on that date, but terminating on 6 May 2030.  Also forming part of annexure D to that affidavit of Mr F, is a document which has been referred to in the evidence as “the Undertaking”.  That document purports to be a document executed on 26 March 2010 by each of the husband and Mr F.  It is purported to be have been witnessed by one Ms G. 

10. In circumstances where the wife had always questioned the validity of such document, steps could have been taken to have Ms G give evidence as to the fact of her having executed the document, being the undertaking, or alternatively, as to her having executed the later lease document dated 7 May 2010. No such evidence was called on behalf of the husband, and pursuant to the principle enunciated in Jones v Dunkel [1959] HCA 8, I draw an adverse inference in that regard insofar as the evidence of the husband and Mr F is concerned. I am not satisfied that the said documents were in fact executed as alleged.

11. If a party seeks to prove a document during the course of legal proceedings, and if there is purportedly an independent witness who can attest as to the circumstances of the execution of any such document, it is, in my view, incumbent upon that party to at least explain why the witness was not present, and additionally, explain why the witness could not attend to give evidence at trial, particularly in circumstances where the document’s authenticity, as here, has been challenged from the outset. 

12. What Mr F asserts, however, is that notwithstanding the terms of the undertaking document, he was entitled at all times to be repaid monies which he asserts he expended in relation to estate costs. 

13. In that regard, Mr F was appointed executor of the estate of the deceased Mr Benetti.  He was also, prior to the death of Mr Benetti Senior, the registered transferee of the Property B property.  What Mr F asserts is that during the course of his administration of the estate of Mr Benetti Senior, he expended monies totalling approximately one hundred and one thousand, five hundred dollars ($101,500.00) on estate matters. On page 2 of his affidavit filed on 15 June 2017, Mr F deposed as follows:

    I was to learn that he had, in fact, nominated me to be his executor.  He had barely left enough money to pay for his funeral.  His young sons were 16 and 18 years old, one at school, one at home caring for him.  He had, in fact, transferred his property into my name and had left a signed contract on a neighbouring block to be finalised by his estate, the deposit had been paid, the contract signed and settlement yet to occur.  There was no money to complete the sale, as per the contract.  The seller was not keen to proceed or to refund the deposit.

    Mr Benetti Senior had struggled with these health issues for some years and when he died he was bankrupt.  Before any estate action could commence, his bankruptcy issues had to be resolved.  I approached the nominated creditors and paid the required amounts to have the bankruptcy annulled/removed.  Court action was then commenced by the estate regarding the contract that was left.  Estate costs soon saw me pay a total of $101,500, including solicitors’ invoices and, attendances for the estate. 

    Around 2006/7 I could not raise any more funds for the estate’s needs.  As I was no longer working, I then transferred the property into both the boys’ names to allow them to borrow against the property and raise the additional funds needed for the estate’s court action to continue. 

    The boys approached Westpac, who would only agree to lend the funds required to complete the court action on the condition that I immediately release the registered lease.  I simply had no choice but to release it on their behalf if their estate action was ever to be finalised.

    Had I not released that lease, the estate action would stall and the $101,500 I had already spent of my own funds would have been wasted.  That lease had been in existence for 20 years and registered since 18 August 1992. 

    Prior to releasing the registered lease, I asked Mr Benetti Junior for signed acknowledgements and assurances including a similar unregistered lease.  I asked Mr Benetti Junior for assurances regarding the 101,500 I am owed by the estate.  I asked Mr Benetti Junior for an assurance regarding the estate commission and I was to later see the estate took seven years to be resolved, and this included some very tough family matters that I had to deal with.  I also asked Mr Benetti Junior for assurances regarding any government or other charges that may still come from this matter.  These assurances were all given and signed off at the time and I expect them to be honoured.  (Annexure D).

14. Quite apart from a consideration of questions of duress, or whether any document executed by the husband consequent upon the actions of Mr F referred to in the evidence of Mr F last referred to was voluntary or not, there is no independent evidence evidencing what the intentions of either Mr F or the husband were at the time that they executed the undertaking document; nor is there any corroborating evidence that it was executed on 26 March 2010.  I am not convinced that such document was, in fact, executed on 26 March 2010.  The wife gave evidence that she did not know of its existence notwithstanding that she had carried out most office duties on behalf of the husband during the course of the marriage. Had it been in existence prior to their separation, one would have thought that the husband would have told his wife of the existence of a document which, on the calculations of Mr F, entitled Mr F to a payment by the husband of approximately four hundred and seventy-one thousand, one hundred and fifty-two dollars ($471,152.00).

15. That figure is said to be payable to Mr F based upon a ten per cent (10%) simple interest calculation in the amount of one hundred and twenty-one thousand, eight hundred dollars ($121,800) calculated over a period of twelve (12) years on the sum of one hundred and one thousand, five hundred dollars ($101,500).  That figure, by a number of different calculations, then is submitted to increase to two hundred and twenty-three thousand, three hundred dollars ($223,300) if one adds the principle and interest components together.  Thereafter, Mr F alleged that he was entitled to payment of two per cent (2%) commission on three million, five hundred thousand dollars ($3,500,000), that being his asserted value of the estate of Mr Benetti Senior and his entitlement due to his having administered the estate.

16. He asserts that two per cent (2%) of three million, five hundred thousand dollars ($3,500,000.00) is in the amount of seventy thousand dollars ($70,000.00) and he claims interest at the rate of 10 per cent (10%) on that, which, over ten (10) years, was eighty-four thousand dollars ($84,000).  He, therefore, claims a total amount of one hundred and fifty-four thousand dollars ($154,000) in that regard, bringing his claim to a total amount of four hundred and eight thousand, eight hundred and sixty-one thousand dollars ($408,861).  It is the husband’s case that when one takes into account all debt alleged by the husband to exist, including the Westpac debt, there is nothing left to constitute as a basis for the making of a property adjustment order in favour of the wife.

1. Alternatively, the husband asserts that the wife is not entitled to anything because she brought nothing to the marriage by way of a financial contribution and that, when offset against other relevant factors, there is no entitlement for a property adjustment on that basis either.  The wife, on the other hand, seeks, as indicated earlier, a substantial division of the asset pool.

2. The undertaking document is annexure D to the affidavit of Mr H filed on 15 June 2017.When one reads that undertaking document, it is clear that the document was, on its face, executed for the purpose of constituting a basis for Mr F to claim some equitable interest in the property.

3. The undertaking purports to have been based upon the proposition that if the property situated at Property B was to be sold for any reason, then the husband, on his undertaking, would agree to repay to Mr F the funds identified to him as having been spent by Mr F towards his father’s estate costs, being one hundred and one thousand, five hundred dollars ($101,500).  It was also recorded that the husband would agree to pay interest on those funds at the same annual interest rate as used by solicitors and/or real estate agents when payments are not made on time. Such interest was said to commence in 2006, at a time three years into the administration of Mr Benetti Senior’s estate matters, and continue up to the date of settlement with Mr F (the settlement with Mr F was the settlement finally arrived at in relation to the purchase by the estate of the Property C property, later transferred into the name of the husband’s brother, Mr J).

4. The husband then gave a further undertaking to Mr F, again based on the contingency that the undertaking was to be apparently enforceable if the Property B property was to be sold “for any reason”, that Mr F would be compensated in performing his acts as an executor for the father’s estate by the payment of two per cent of the value of the two properties involved, namely, the Property B property and the Property C property, together with the value of stock and equipment as recorded at that time (though that latter time is not specified).

5. The agreed value was said to be three million, five hundred thousand dollars ($3,500,000) in that regard.  It is further recorded that the husband gave an undertaking to Mr F that if his property was sold for any reason he would deduct, and be responsible for, any and all costs relevant to his father’s estate that may be required to be paid, including, but not limited to, transfer costs and taxes, be they land or any other Government-imposed taxes.  He also agreed to register a mortgage guaranteeing that all of the above funds were available to Mr F and soon as the existing mortgage with Westpac was able to be cleared.  It was said that such clearance would also allow the lease to be registered as well.

6. There is no evidence as to the latter – namely whether any attempt had ever been made to seek the consent of Westpac for the registration of a second mortgage or not. It was accepted in evidence by all parties, and it is the case, that the will of the late Mr Benetti Senior did not have any charging clause in it entitling Mr F to claim commission. If a party appointed to act as an executor or trustee seeks the payment of commission for work undertaken by them in respect of the administration of the relevant estate, then they are entitled to make application for the payment of such commission. For example, pursuant to rule 657C of the Uniform Civil Procedure Rules1999 (Qld) (“the Rules”), a trustee for an estate may apply to the court for commission.

7. Rule 657C of the UCPR is as follows:

   657C Application for commission

   (1) A trustee of an estate may apply to the court for commission.

   (2) The application must be supported by an affidavit of the trustee setting out—

   (a) the basis of the application; and

   (b) the commission sought; and

   (c) the trustee’s justification for the commission; and

   (d) an inventory of the estate; and

   (e) material to identify the appropriate respondents to the application.

   (3) Unless the court otherwise orders, the application must be served on any beneficiary of the estate affected by the order sought.

   (4) The court may direct that the application be served on any other person

8. Subparagraph two (2) of that rule provides that the application must be supported by an affidavit of the trustee setting out (a) the basis of the application, the commission sought, the trustee’s justification for the commission and an inventory of the estate and material to identify the appropriate respondents to the application.  It’s also provided that, unless the court otherwise orders, the application must be served on a beneficiary of the estate affected by the order sought, and the court may direct that the application be served on any other person.

9. Rule 657E of the UCPR provides for the factors which a court may take into account when deciding whether an application for commission by a trustee of an estate ought to be granted.  Rule 657E provides as follows:

   657E Decision on application for commission

   (1) In deciding an application for commission by a trustee of an estate, the court may take into account—

   (a) the value and composition of the estate; and

   (b) the provisions of the will or trust instrument for the estate; and

   (c) the conduct of all persons (including the parties) connected with the administration of the estate; and

   (d) the nature, extent and value of work done by persons other than the trustee, including non-professional work delegated to a lawyer; and

   (e) the result of any assessment of the estate account, including the scope and merit of any objections raised in a notice of objection before the estate account is passed; and

   (f) the efficiency of the administration of the estate; and

   (g) any other matter the court considers relevant.

   (2) The court may make any order for commission the court considers appropriate.

10. It also gives to the court the discretion to make any order for such commission the court considers appropriate. Rule 657F of the UCPR also relates to a situation akin to the present and provides as follows:

    657F Other orders and agreements

    Nothing in this part prevents—

    (a) the court making an order in relation to an estate account or commission; or

    (b) all trustees and beneficiaries of an estate making an agreement in relation to an estate account or commission.

11. The rule provides that nothing in this part prevents:

    a)The court making an order in relation to an estate account or commission;  or

    b)all trustees and beneficiaries of an estate making an agreement in relation to an estate, account or commission. 

12. It is relevant that rule 657F of the UCPR adverts to the possibility that all trustees and beneficiaries of an estate may make an agreement in relation to an estate, commission or account because, in this case, there is no such agreement.  There is only an agreement in terms of the Rule if there is an agreement between the beneficiaries of an estate and the relevant trustee – relevantly in this case between Mr F as trustee and the husband and his brother as beneficiaries.  There is no agreement in respect of either or both the husband and his brother Mr H, who were the only two beneficiaries to the estate.

13. It is also clear that, up to the present time, Mr F has made no court application in respect of his having any entitlement to anything -  commission or otherwise - as a result of that which he has done, or alleges he has done, in respect of the administration of the estate of Mr Benetti Senior.  He had the entitlement and opportunity to do so before probate to the estate was granted, but he failed to do so. In such circumstances, there is no legal entitlement on the part of Mr F, in the court’s view, to now make claim for anything in respect of his administration of the estate.  Limitation issues clearly militate against Mr F doing so in that regard.

14. That is quite apart from a consideration of whether the undertaking document referred to above is a document which is otherwise legally enforceable, either on the basis that it did not constitute any valid, equitable transfer of any interest in either estate property or the property at Property B to Mr F or, alternatively, on the basis that it was an agreement made for valuable consideration; or, in the further alternative, that it was void for uncertainty.  As to the question of whether the agreement was made for valuable consideration or not, it is clear that the agreement was executed after Mr F had allegedly carried out the acts which he asserted constituted the basis for his being entitled to be paid for his services, or for the payment of outlays allegedly incurred by him or for commission.

15. It is a document which purports to impose the whole of an alleged obligation upon the husband, whereas at least half of the asserted moral obligation, even if validly asserted, was also an equal obligation on the part of the brother, Mr J.  A case on point is a decision of the Court of Appeal in McArdle & McArdle (1951) 1 ALR 905. The headnote to that case reads:

    Equitable assignment – absence of consideration – validity – need to be complete and perfect.

16. It was held in that case that a voluntary equitable assignment of a sum of money, to be valid, must be in all respects complete and perfect so that the assignee is entitled to demand a payment from the holder of the fund, so that the holder is bound to make payment to the assignee with no further act on the part of the assignor remaining necessary to perfect the assignee’s title.  In the current case, the purported assignee is Mr F.  In no respects could it be held that the terms of the undertaking document entitled the assignee to demand payment from the holder of the fund, either at the time of execution of the document, or subsequently.  It is clear from the terms of the document, that each of the prerequisites for the payment of alleged outstanding estate costs, commission, or other costs associated with the administration of the estate, were contingent upon the sale of the Property B property “for any reason”.  In such circumstances Mr F never had an entitlement to make demand, because the prerequisite condition had not been met. Sir Raymond Evershed MR articulated the question as follows:

    The question for our determination is whether the document is effective to pass to Mrs Montagu McArdle an indefeasible interest in a proportionate part of the residuary estate.  If it is not, I think it is clear, that it must fail to give her a claim which she can litigate owing to the fact that there was and is no consideration passing from her to support her claim.

17. Jenkins LJ also said:

    A voluntary equitable assignment to be valid must be in all respects complete and perfect so that the assignee is entitled to demand payment from the trustee or holder of the fund and the trustee is bound to make payment to the assignee with no further act on the part of the assignor remaining to be done to perfect the assignee’s title.  Failing these conditions, the voluntary assignment suffers the fate of other incomplete gifts.  The donor has a locus poenitentiae and can change his mind at any time.  No question of conscience enters into the matter, for there is no consideration, and there is nothing dishonest on the part of an intending donor, if he chooses to change his mind at any time before the gift is complete. 

    The true position, however, was that, as the work had all been done and nothing remained to be done by Mrs McArdle at all, the consideration was wholly passed and therefore the beneficiaries’ agreement for the repayment to her of the pound sign 4 8 8 out of the estate was nudum pactum, a promise with no consideration to support it.  That being so, it is impossible, for Mrs McArdle to rely on the document as constituting an equitable assignment for valuable consideration.

18. I was referred in submissions by counsel for the husband to the case of Martin v Newton, (2011) 47 Fam LR 1. It was held in that case on appeal, that to the extent that there was found to have been a moral obligation on the part of the husband to expend pooled funds on future research purposes for which such funds had been provided, that ought to have been taken into account when a court made any orders adjusting property between the husband and the wife. At paragraph 228 in the joint judgment of Bryant CJ and Thackeray J it was said as follows:

    We accept that funds donated in such circumstances could properly be treated in the same way as any other assets, if the court was not persuaded that the money would be spent on the intended purpose.

19. In this case, I am not persuaded that the undertaking document was executed in 2010 as alleged, or otherwise that such document operated to impose or to record any binding legal or moral obligation on the part of the husband.  If it is the case, for whatever reason, that the husband unilaterally feels morally obliged to make some payment to Mr F, then so be it.  That is entirely a different question from his having any legal obligation to do so.  Accordingly, I do not consider that the alleged debt to Mr F has been proven.  And thus the claim in that regard will not be accepted as forming part of the asset pool of parties. 

20. I do consider that the husband ought to have the benefit of his having supported the child [A] since separation, a situation which is likely to continue into the future, and accordingly I accept the husband’s submissions based upon section 75(2) of the Act in that regard. I adopt the comments of the Full Court in the case of In the marriage of Robb (1995) FLC 92–555, where it was said the husband, however, had no legal duty to maintain the children at any time during the marriage, because none of the preconditions stipulated in section 66G existed.

21. The husband, in making his contribution, was assisting the wife in the discharge of her legal obligations, and while the justice of the case clearly required the husband’s contribution to be taken into account under section 75(2), the same could not be said of the wife’s contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband. There is no doubt in this case, that the husband has been responsible for, almost entirely, the financial contributions which have maintained the life-style of the husband, wife and children of the marriage during the whole of the marriage.

22. As adverted to earlier, the husband has health issues whereas the wife does not. The wife did not bring into the marriage property of any substance. It must be conceded that the wife performed tasks which assisted in the maintenance of the property, but the extent of her contributions in that regard were not as great as the husband’s. It is the duty of the court pursuant to section 81 of the Act to end financial relations between parties in circumstances such as the present.

23. When considering what is the appropriate order to make pursuant to section 79 of the Act, I have had regard to the factors referred to in section 79(4) of the Act. As adverted to earlier, the financial contribution made directly and indirectly by the husband was almost entirely the whole of the financial contribution made by the husband and the wife in these proceedings. The husband and the wife each made contributions in a non-financial sense both directly and indirectly, but their efforts in that regard, in my view, were equal.

24. The husband worked as a tradesman and ran a business.  The wife stayed at home and looked after the home and family.  The contribution made by each party toward the welfare of the family and the children of the marriage was slightly greater on the part of the wife but not substantially so, in my view. 

25. The husband lives in a property which was the subject of a bequest under a will from his late father.  He runs a business from such premises.  In my view, it is unlikely that he would be able to do so in other premises should he be required to sell that property.  As indicated, the father has continued to care for the child [A] for the two years since separation and he is likely to do so into the future.  The husband will in my view be unable to service any loan which is in any way significantly greater in amount than the loan which is presently secured against the Property B property.

26. In all of the circumstances, I consider it appropriate that the husband pay to the wife the sum of seventy thousand dollars ($70,000) by way of property adjustment order, and that such payment be made within three (3) months of the date hereof. That order is in full and final satisfaction of the wife’s claims in this proceeding. I consider such sum, on balance, to be what is just and equitable in all of the circumstances, bearing in mind the unequal contributions made by each of the respective parties, as well as the ongoing uncertainties of the husband relating to his health as compared with the wife.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 18 January 2019