FEDERAL CIRCUIT COURT OF AUSTRALIA
| BERRIDGE & LEIGH | [2017] FCCA 2876 |
| Catchwords: PRACTICE AND PROCEDURE – Undefended hearing – orders made by consent granting leave to proceed undefended in default of compliance with orders for financial disclosure – failure to provide financial disclosure – applicant pursued claim for final relief where respondent’s claim for compensation not disclosed – applicable principles. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: A and Z [2006] FamCA 179 |
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- AGLC
- BERRIDGE & LEIGH [2017] FCCA 2876
- Case
- [2017] FCCA 2876
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a cause of action for damages for negligence, such as the respondent's compensation claim, constituted "property" within the meaning of the *Family Law Act 1975* (Cth). Further, the court considered the implications of the respondent's non-disclosure of this claim, particularly in circumstances where the applicant had proceeded to seek final property orders with knowledge that the value of the compensation claim was unquantified. The court also addressed the principles applicable to undefended hearings where orders for financial disclosure had not been complied with.
The court reasoned that a bare right of action for negligence is generally considered personal and not assignable, and therefore not typically treated as property for the purposes of the *Family Law Act*. Given that the merit of the respondent's claim was unknown and its value unquantified at the time the application for final orders was made, the court found it could not be readily included in the property pool. The court noted that the parties had made consent orders for financial disclosure, which the respondent failed to comply with, leading to an undefended hearing.
The court made orders for the sale of the parties' residence, with specific provisions for the appointment of a real estate agent and conveyancer, and the determination of the sale price and terms. The proceeds of sale were to be applied first to selling expenses and any mortgage, with the balance to be divided. The applicant was to retain specified assets valued at $43,316, and the respondent was to retain specified assets valued at $76,500. The remaining balance of the sale proceeds, together with these declared values, was to be divided so as to effect an overall property division of 85 per centum to the applicant and 15 per centum to the respondent. The orders also stipulated that each party was solely entitled to other property in their possession and forewent claims to certain benefits of the other, with provisions for indemnification against liabilities. A Registrar was appointed to execute documents if necessary to effect the sale of the property.
Orders
Orders of the court
1.
The property situate at and known as Property A (Property), forthwith be placed on the open market for sale.
2.
In relation to the said sale of the Property:
(a) a Real Estate Agent, to be appointed for the purposes of effecting the sale, shall be selected by the President of the Real Estate Institute of Victoria (or his/her nominee), the costs of which selection shall be a selling expense of the sale;
(b) within 7 days of the selection of that Real Estate Agent, the sale price and terms of the sale shall be as recommended by the President of the Real Estate Institute of Victoria (or his/her nominee). The costs of such recommendations shall be included as a selling expense of the sale;
(c) a conveyancer to be appointed for the purposes of effecting the sale (Conveyancer) shall be selected by the President of the Real Estate Institute of Victoria (or his/her nominee), the costs of which conveyance shall be a selling expense of the sale;
(d) the parties shall follow the reasonable recommendations of the nominated Real Estate Agent and Conveyancer, including in relation to the marketing and sale of the Property;
(e) the Property may be sold by public auction or private treaty as may appear expedient in the discretion of the Real Estate Agent.
3.
The proceeds of sale of the Property shall be applied as follows:
(a) first, to pay all costs, commission and expenses of the sale including the costs of the conveyance;
(b) secondly, to pay any sum due and payable on any mortgage registered on title to the Property;
(c) thirdly, to pay any sum due and payable in respect of land tax, rates or other outgoings as may be required to complete the sale;
(d) fourthly, as to the balance (Balance), such sum to be paid into the trust account of the Conveyancer and be applied and paid, as required, in accordance with paragraph 8 of this order.
4.
The applicant shall retain:
(a) any monies standing to the credit of her bank accounts;
(b) her motor vehicle;
(c) her superannuation;
(d) her personal effects.
5.
IT IS DECLARED THAT the value of the personal property referred to in paragraph 4 of this order is $43,316.
6.
The respondent shall retain:
(a) any amount standing to the credit of his bank account;
(b) his motor vehicle;
(c) his superannuation;
(d) any chattels in the Property;
(e) his person effects.
7.
IT IS DECLARED THAT the value of the personal property referred to in paragraph 6 of this order is $76,500.
8.
The Balance, together with the sum of $43,316 and the sum of $76,500 be divided in accordance with paragraphs 3(d), 4, 5, 6 and 7 above so as to effect an overall division of the parties’ property as to:
(a) 85 per centum, to the applicant, and;
(b) 15 per centum, to the respondent.
9.
Save for the purposes of enforcing any orders made above:
(a) each party is solely entitled, to the exclusion of the other, to all and any other property in the possession of such party as at the date of this order;
(b) each party foregoes any claims that they may have as to any superannuation, compensation, insurance, employment or any other benefits belonging to, earned or receivable by the other;
(c) all insurance policies remain the sole property of the named owner;
(d) each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party may be entitled pursuant to this order, and in respect of any other liability that may be incurred in their name;
(e) any joint tenancy of the parties in any real or personal property is severed.
10.
The parties do and abstain from doing all such acts and things (as the case requires), and sign all necessary documents as may be reasonably necessary so as to affect a sale of the Property, including as by execution of documents, complying with reasonable requests of the Real Estate Agent and Conveyancer and in giving vacant possession of the Property prior to completion of the sale.
11.
Notwithstanding paragraph 10 above, and the court considering it necessary to exercise the powers of the court under s 106A(1) of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia is appointed, in default of the performance or observance of the obligations in paragraph (10) above, to execute any documents in the name of the parties or either of them and do all acts and things necessary so as to give validity and operation to the sale and transfer of the Property pursuant to paragraphs 1-3 inclusive of this order.
12.
Liberty to apply be reserved to apply for further directions as may be required so as to effect and complete the sale of the Property.
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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