BERRIDGE & LEIGH

In the Federal Circuit Court of Australia, Judge A Kelly presided over a property settlement dispute between Berridge (the applicant) and Leigh (the respondent). The primary asset in contention was the parties' residence. The respondent had sustained an injury from an industrial accident and had a claim for compensation, which had not been disclosed to the applicant. The applicant contended that the value of this compensation claim should be included in the asset pool for division.

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.