Berge and Berge and Ors - [2009] FamCA 968

FAMILY COURT OF AUSTRALIA

BERGE & BERGE AND ORS

[2009] FamCA 968

FAMILY LAW – PROPERTY – joint venture between the husband and the husband’s father – wife sought orders that the husband and his father hold the property on trust for them equally – the orders were opposed

Family Law Act 1975 (Cth)

APPLICANT:

Ms Berge

1^st RESPONDENT:

Mr N Berge

2^nd RESPONDENT:

Mr J Berge

3^rd RESPONDENT:

Ms Tolstoia

FILE NUMBER:

SYF

4280

2006

DATE DELIVERED:

9 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29-30 June 2009, 1-2 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Foster

2^ND RESPONDENT:

In person

3^RD RESPONDENT:

In person

Orders

The husband’s Amended Response to an Initiating Application filed 29 June 2009 is dismissed.
The second respondent’s Response to an Application for Final Orders filed

30 April 2007 is dismissed.
The husband’s application for orders against the third respondent is dismissed.
The husband pay the costs of the third respondent as agreed between them or in the absence of agreement, as assessed.
Declaration that the husband and the second respondent hold the property known as C property in the State of New South Wales (“the C property”) as trustees for the benefit of the husband and the second respondent for their respective entitlements under the terms of a joint venture agreement made between them.
Declaration that the husband and the second respondent entered into a joint venture agreement for the subdivision and development of the C property and an adjacent parcel of 25 acres known as Lot B, and the terms of which were:
(a)the costs and profits of the joint venture were to be shared equally between the husband and the second respondent;
(b)the land was to be subdivided into three main lots;
(c)the benefits arising from the joint venture were to be shared as follows; namely, that the second respondent was to retain for his own use one Lot with a home to be built on it for his use and benefit and at a cost to be financed from the second respondent’s share of the proceeds of sale of Lot B; and
(d)from the proceeds of the sale of an adjacent parcel of land described as Lot B, containing about 25 acres and adjacent to the C property, the husband and the second respondent would, subject to an agreed reduction of the mortgage otherwise charged on C and the payment of a loan made in relation to the acquisition of C, each receive the sum of $65,000.
Declaration that the husband received the sum of $65,000 as agreed and applied $15,000 for his own purposes and contributed the balance to a fund controlled by the second respondent.
Declaration that as between the husband and the second respondent, the husband shall bear the sole responsibility for the repayment of the sum of $126,600, the portion of the borrowings secured…

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.

Keep reading for free

Create a free CaseChat account to read Berge and Berge and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FamCA 968
Decision Date: 9 October 2009

CaseChat Overview and Summary

In the matter of Berge and Berge and Ors, Justice Fowler of the Supreme Court of New South Wales was required to determine a complex dispute involving property division and the terms of a joint venture agreement. The parties to the proceedings included the husband, the second respondent, and the wife. The husband sought various orders against the second and third respondents, while the second respondent also filed an application for final orders.

The central legal issues before the court concerned the existence and terms of a joint venture agreement between the husband and the second respondent concerning the subdivision and development of two properties, referred to as the C property and Lot B. The court was tasked with determining the respective entitlements and liabilities of the husband and the second respondent arising from this joint venture, as well as resolving claims made by the wife against the husband.

Justice Fowler's reasoning led to several declarations regarding the joint venture. The court declared that the husband and the second respondent held the C property as trustees for their respective entitlements under a joint venture agreement. This agreement stipulated that costs and profits were to be shared equally, with the land to be subdivided into three lots. Specifically, the second respondent was to retain one lot with a home built at his expense from his share of proceeds, and both parties were to receive $65,000 from the sale of Lot B. The court further declared the husband's sole responsibility for a $126,600 loan applied to his use, and the second respondent's responsibility for costs exceeding $65,000 for his home, as well as borrowings for a Darwin property. The sale of land to Mr and Mrs O was deemed necessary for subdivision, with net proceeds belonging to the joint venture. The husband was ordered to pay the wife $120,990, with both husband and second respondent charging their interests in the C property to secure this payment.

Orders

Orders of the court

The husband’s Amended Response to an Initiating Application filed 29 June 2009 is dismissed.

The second respondent’s Response to an Application for Final Orders filed

30 April 2007 is dismissed.

The husband’s application for orders against the third respondent is dismissed.

The husband pay the costs of the third respondent as agreed between them or in the absence of agreement, as assessed.

Declaration that the husband and the second respondent hold the property known as C property in the State of New South Wales (“the C property”) as trustees for the benefit of the husband and the second respondent for their respective entitlements under the terms of a joint venture agreement made between them.

Declaration that the husband and the second respondent entered into a joint venture agreement for the subdivision and development of the C property and an adjacent parcel of 25 acres known as Lot B, and the terms of which were:

(a) the costs and profits of the joint venture were to be shared equally between the husband and the second respondent;

(b) the land was to be subdivided into three main lots;

(c) the benefits arising from the joint venture were to be shared as follows; namely, that the second respondent was to retain for his own use one Lot with a home to be built on it for his use and benefit and at a cost to be financed from the second respondent’s share of the proceeds of sale of Lot B; and

(d) from the proceeds of the sale of an adjacent parcel of land described as Lot B, containing about 25 acres and adjacent to the C property, the husband and the second respondent would, subject to an agreed reduction of the mortgage otherwise charged on C and the payment of a loan made in relation to the acquisition of C, each receive the sum of $65,000.

Declaration that the husband received the sum of $65,000 as agreed and applied $15,000 for his own purposes and contributed the balance to a fund controlled by the second respondent.

Declaration that as between the husband and the second respondent, the husband shall bear the sole responsibility for the repayment of the sum of $126,600, the portion of the borrowings secured on C property and applied to his own use. The husband shall bear the payment of all interest charges thereon.

Declaration that the second respondent shall bear the costs of erection of his home to the extent that those costs exceed the sum of $65,000 being the sum received by him from the sale of Lot B.

10.

Declaration that as between the second respondent and the husband, the second respondent shall bear the sole responsibility for monies borrowed and all interest accruing thereon and applied for his own use by way of investment in and costs of acquisition and financing of a Darwin property, known as

… in the Northern Territory held by P Company Pty Ltd ACN … which he is the sole director and shareholder and which together with its beneficiary trust, namely the B Property Investor Trust, is the alter ego of the second respondent.

11.

Declaration that the sale of a certain parcel of land to adjoining owners,

Mr and Mrs O, and the monies derived thereby is a sale required in order to complete the subdivision and that the net proceeds of such sale are monies which are the property of the joint venture.

12.

The husband is to pay to the wife the sum of $120,990 within one month of the date hereof.

13.

The husband and the second respondent each are to charge all their right, title and interest in the C property with the due performance and observance of the obligations imposed by these Orders on the husband under Order 12 hereof.

14.

The husband and the second respondent are restrained from mortgaging, encumbering or disposing of their interest in the C property pending payment of the sum referred to in Order 12 above, except for the purpose of complying with the Order.

15.

The husband and the wife otherwise than as specified in these orders are as against each other declared the beneficial owner of all property, superannuation and resources within their ownership, possession, power or control.

Notations

16.

In these orders the reference to “the parties” is a reference to the husband, the second respondent and the wife.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.