Benlow and Hyte - [2008] FamCA 1022

FAMILY COURT OF AUSTRALIA

BENLOW & HYTE

[2008] FamCA 1022

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Adjustment for other matters
FAMILY LAW – MAINTENANCE – spousal – need for support

Family Law Act 1975 (Cth) ss 72, 74, 75 & 79

In the Marriage of Hickey (2003) 30 Fam LR 35
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) 12 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Shaw (1982) 8 Fam LR 432; FLC (1982) 91-540
In the Marriage of Papas (1982) FLC 91-358
M v M (2006) 36 Fam LR 97
Mitchell v Mitchell (1995) 19 Fam LR 44; 120 FLR 292; (1995) FLC 92-601
In the Marriage of Stein (2000) 25 Fam LR 727

APPLICANT:

Mr Benlow

RESPONDENT:

Ms Hyte

FILE NUMBER:

SYC

5939

2007

DATE DELIVERED:

21 November 2008

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

17 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr J. Lloyd
SOLICITOR FOR THE APPLICANT:	York Family Lawyers

COUNSEL FOR THE RESPONDENT:	Mr G. Foster
SOLICITOR FOR THE RESPONDENT:	Watts McCray Lawyers

Orders

The Husband and the Wife shall forthwith do all acts and things and sign all documents necessary so as to effect a sale of the property situate at and known as N in the State of New South Wales for the best price reasonably obtainable in the following manner:
1.1.list the N property for sale by either private treaty within three months from this date and thereafter by public auction with such agent as the parties may agree to appoint and in default of agreement as to agent then with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be paid by the Husband as and when same fall due;
1.2.the price for sale or reserve price for the purpose of any auction shall be such price as may be mutually agreed upon by the parties or, in the absence of agreement shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of the Australian Property Institute of Valuers (“the valuer”) the costs of and incidental to such appointment and valuation to be paid by the Husband as and when same fall due;
1.3.the valuer shall, if requested by either the Husband or the Wife at a date three (3) calendar months after the date upon which the N property is first listed pursuant to Order 1.1 herein and thereafter at three (3) calendar…

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 Benlow and Hyte

Details

AGLC: Benlow and Hyte [2008] FamCA 1022
Case: [2008] FamCA 1022
Decision Date: 17 October 2008

CaseChat Overview and Summary

This matter came before Judicial Registrar Loughnan concerning a dispute between a Husband and Wife regarding the sale of their property located at N, New South Wales. The orders detail the process for listing, selling, and distributing the proceeds of the property, as well as addressing other financial and asset division matters between the parties.

The court was required to determine the terms and conditions under which the jointly owned property would be sold, including the appointment of agents and valuers, the setting of reserve prices, and the procedure for negotiation and re-listing if the property did not sell at auction. Additionally, the court addressed the husband's responsibility for property outgoings pending sale, the wife's sole occupation of the property, the application of sale proceeds, a lump sum payment from the husband to the wife, the division of various assets and liabilities, and the provision of spousal maintenance.

The Judicial Registrar applied principles of property settlement and spousal maintenance under the *Family Law Act*. The orders reflect a comprehensive approach to resolving the financial matters in dispute, aiming to achieve a final division of assets and liabilities. The court provided detailed mechanisms for the sale of the property, including provisions for default and disagreement between the parties, and established a framework for ongoing spousal maintenance with an annual review mechanism linked to the Consumer Price Index. The orders also included standard provisions for the execution of documents by a Registrar in the event of non-compliance and for the relisting of the matter for further directions if necessary.

The orders directed the immediate sale of the property at N, New South Wales, with specific instructions on listing, valuation, and negotiation. The husband was made responsible for all outgoings related to the property pending sale, and the wife was granted sole occupation. Proceeds of sale were to be applied to sale expenses, mortgage discharge, with the net proceeds to be paid to the wife. The husband was ordered to pay the wife $108,000 within two months, and spousal maintenance of $376 per week until the child commences high school, subject to annual CPI adjustments. The orders also clarified the sole ownership of various assets and liabilities for each party and included mutual indemnities and releases from debts.

Orders

Orders of the court

The Husband and the Wife shall forthwith do all acts and things and sign all documents necessary so as to effect a sale of the property situate at and known as N in the State of New South Wales for the best price reasonably obtainable in the following manner:

1.1. list the N property for sale by either private treaty within three months from this date and thereafter by public auction with such agent as the parties may agree to appoint and in default of agreement as to agent then with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be paid by the Husband as and when same fall due;

1.2. the price for sale or reserve price for the purpose of any auction shall be such price as may be mutually agreed upon by the parties or, in the absence of agreement shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of the Australian Property Institute of Valuers (“the valuer”) the costs of and incidental to such appointment and valuation to be paid by the Husband as and when same fall due;

1.3. the valuer shall, if requested by either the Husband or the Wife at a date three (3) calendar months after the date upon which the N property is first listed pursuant to Order 1.1 herein and thereafter at three (3) calendar monthly intervals until the N property is sold, nominate a sale price other than the originally nominated sale price;

1.4. the parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):

1.4.1. making the key available to the agent;

1.4.2. allowing inspection of the N property at all reasonable times requested by the agent;

1.4.3. doing or saying nothing to hinder or prevent a sale being effected;

1.4.4. signing all documents requested by the agent in relation to the listing for sale of the N property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.

1.5. in the event the bidding at the auction does not reach the reserve price the parties or such of them as attends the auction may negotiate with the highest bidders or any other interested person and effect a sale of the N property at a price recommended by the selling agent which is not more than five per cent (5%) below the reserve price, or at such other price as the parties agree upon in writing;

1.6. if the N property remains unsold, the parties shall do all acts and things and sign all documents necessary to continue to re-list the N property for sale by public auction again at three (3) monthly intervals, and the provisions of Orders 1.1 and 1.5 herein shall apply successively until the N property has been sold so that at each successive auction the reserve price shall be as recommended by the valuer in accordance with Order 1.3 herein immediately preceding an auction or as agreed by the parties in writing;

1.7. the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at the sale price;

1.8. the parties shall instruct Watts McCray Lawyers to have the conduct of the sale on behalf of both parties and the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

1.9. neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the N property or to any commission.

Pending the sale of the N property the Husband be responsible for payment of all outgoings relating to that property including but not limited to the mortgage to the National Australia Bank, Council rates, Water rates, insurances and any other amounts that may be required to ready the N property for sale on the recommendation of the selling agent.

The Wife shall have the sole occupation of the N property pending the sale.

That upon the settlement of the sale of the N property the parties shall do all acts and things and execute all documents necessary to cause the proceeds of sale be applied as follows:

4.1. in payment of any agent’s, auctioneers and legal expenses incurred in the said sale including any advertising costs and commission;

4.2. Discharge of any mortgage secured over the N property.

4.3. The net proceeds to be paid to the Wife.

The husband shall pay to the wife $108,000 within 2 months from the date of these orders.

Except as any provision of the paragraphs comprising this Order provide to the contrary, as against the Husband, the Wife is entitled to be the sole owner of and the Husband has no interest in:

6.1. the Wife’s bank accounts;

6.2. the Wife’s superannuation;

6.3. the Wife’s jewellery;

6.4. the Wife’s car;

6.5. all other assets of whatsoever nature and kind presently in the name, possession or ownership of the Wife.

Except as any provision of the paragraphs comprising this Order provide to the contrary, as against the Wife, the Husband is entitled to be the sole owner of and the Wife has no interest in:

7.1. the Husband’s car;

7.2. the Husband’s superannuation;

7.3. the Husband’s shares;

7.4. the Husband’s interest, if any, in X Practice; and

7.5. all other assets of whatsoever nature and kind presently in the name, possession or ownership of the Husband.

Except as any provision of the paragraphs comprising this Order provide to the contrary:

8.1. the Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.

8.2. the Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.

Except as any provision of the paragraphs comprising this Order provide to the contrary, each of the Husband and the Wife release the other from all debts owing from one to the other.

10.

The husband shall pay to the wife by way of spousal maintenance the sum of $376 per week until the child L commences High School. The first payment shall be made within 7 days with such payments to be made by direct deposit to a bank account nominated by the Wife.

11.

The maintenance to be paid to the wife pursuant to Order 10 herein, be varied each year on and from 1 July (hereinafter such date is referred as the “review date”) commencing on 1st day of July 2009, to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B, where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics or its successor (“the CPI”) in respect of the quarter ended on 31 March in the year prior to the year of the review date, and “N” is the CPI in respect of the quarter ended 31 March immediately preceding the review date.

12.

In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit..

13.

The parties are granted leave on seven days notice to the Court and to the other party to relist the matter for further Orders or Directions to implement 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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