Bixby and Bixby - [2014] FCCA 1992

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIXBY & BIXBY

[2014] FCCA 1992

Catchwords:
FAMILY LAW – Property – application for property settlement – assessment of the asset pool – contributions of the parties – consideration of factors under Family Law Act 1975 (Cth), s.75(2) – whether any adjustment should be made – where parties agree that former matrimonial home should be sold and proceeds divided.

Legislation:

Family Law Act 1975,(Cth) ss.75, 79, 106A

Cases cited:
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Peabody & Peabody [2013] FCCA 1980
Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
Townsend & Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569

Applicant:

MR BIXBY

Respondent:

MS BIXBY

File Number:

SYC 4748 of 2012

Judgment of:

Judge Scarlett

Hearing date:

30 April 2014

Date of Last Submission:

30 April 2014

Delivered at:

Sydney

Delivered on:

3 September 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Nicholls

Solicitors for the Applicant:

Fay Marie Nicholls & Associates

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

M.G. O'Callaghan & Associates

ORDERS

The Applicant Husband and the Respondent Wife are to do all such things and execute all deeds, documents and instruments necessary in order to submit the property situate at and known as Property N, [N] in the State of New South Wales for sale by private treaty within one (1) month of the date of these Orders.
The listing price for the said property at Property N, [N] aforesaid shall be as agreed between the parties and in default of agreement as advised by an estate agent nominated by the President of the Real Estate Institute of New South Wales.
The parties are to list the property at Property N, [N] aforesaid for sale by private treaty with a real estate agent who carries on business in the [N] area as agreed between the parties and, in default of agreement, as nominated by the President of the Real Estate Institute of New South Wales.
In the event that the property at Property N aforesaid has not been sold within three (3) months from the date of these Orders, then the parties must do all do such things and make all such arrangements as shall be necessary to procure a sale of the said property by public auction upon the following terms:
(a)The auctioneer shall be as agreed between the parties but in default of agreement as nominated by the President of the Real Estate Institute of New South Wales;
(b)The reserve price is to be agreed upon by the parties but in default of agreement as proposed by the auctioneer; and
(c)The parties are to pay all auction expenses in equal shares prior to the auction.
In the event that the property at Property N, [N] aforesaid is not sold by auction or by private treaty within fourteen (14) days after the date of the auction then the parties must do all acts…

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 Bixby and Bixby

Details

AGLC: Bixby and Bixby [2014] FCCA 1992
Case: [2014] FCCA 1992
Decision Date: 3 September 2014

CaseChat Overview and Summary

In Bixby and Bixby, heard before Judge Scarlett, the dispute concerned the division of property and the resolution of financial liabilities between the applicant husband and the respondent wife. The court was required to make orders regarding the sale of a jointly owned property, the distribution of sale proceeds, and the allocation of various assets and debts between the parties.

The court determined the process for the sale of the property, including timelines for private treaty sale and public auction, and specified how the reserve price would be set in the event of disagreement. It also outlined the order of priority for the application of sale proceeds, which included the payment of sale costs, encumbrances, and then the distribution of the remaining balance between the wife and the husband. Furthermore, the court addressed the retention of specific personal property, including vehicles and a business, by each party, and established a mechanism for the Registrar to execute documents if a party refused to do so.

The court ordered that the jointly owned property be sold by private treaty within one month, with provisions for sale by public auction if not sold within three months, and a subsequent auction if still unsold. The proceeds were to be applied first to sale costs and encumbrances, then 55% to the wife and the remainder to the husband. The husband was to retain his motor vehicle, motorcycles, and trailer, and his interest in a business, while the wife was to retain her motor vehicle. Both parties were to retain their respective bank accounts, superannuation policies, and personal effects. The husband was to indemnify the wife against a personal loan and a taxation debt, and the wife was to indemnify the husband against two personal loans and any other debt in her sole name. Provisions were also made for any party seeking costs to file an application within one month.

Orders

Orders of the court

The Applicant Husband and the Respondent Wife are to do all such things and execute all deeds, documents and instruments necessary in order to submit the property situate at and known as Property N, [N] in the State of New South Wales for sale by private treaty within one (1) month of the date of these Orders.

The listing price for the said property at Property N, [N] aforesaid shall be as agreed between the parties and in default of agreement as advised by an estate agent nominated by the President of the Real Estate Institute of New South Wales.

The parties are to list the property at Property N, [N] aforesaid for sale by private treaty with a real estate agent who carries on business in the [N] area as agreed between the parties and, in default of agreement, as nominated by the President of the Real Estate Institute of New South Wales.

In the event that the property at Property N aforesaid has not been sold within three (3) months from the date of these Orders, then the parties must do all do such things and make all such arrangements as shall be necessary to procure a sale of the said property by public auction upon the following terms:

(a) The auctioneer shall be as agreed between the parties but in default of agreement as nominated by the President of the Real Estate Institute of New South Wales;

(b) The reserve price is to be agreed upon by the parties but in default of agreement as proposed by the auctioneer; and

In the event that the property at Property N, [N] aforesaid is not sold by auction or by private treaty within fourteen (14) days after the date of the auction then the parties must do all acts and things and sign all necessary documents and pay all moneys equally necessary to procure a second auction of the said property within a further five (5) weeks at a reserve price set at ten per cent (10%) less than the previous reserve price.

Upon completion of the sale of the property at Property N aforesaid the parties are to apply the proceeds of sale in the following order of priority:

(a) in payment of all costs, commissions and expenses of the sale and any council and water rates and taxes outstanding in respect of the said property;

(b) to discharge the mortgage and any other encumbrance affecting the said property;

(d) as to the remainder to the husband.

If either party refuses or neglects to execute any deed or instrument or sign any document necessary for the operation of the above orders then the Registrar or a Deputy Registrar is appointed under the provisions of section 106A of the Family Law Act 1975 to execute the deed or instrument or sign the document in the name of the party who has refused or neglected to do so and to do all acts and things necessary to give validity and operation of the deed, instrument or document.

The husband is to retain his Toyota Hilux motor vehicle, all his motor cycles and bike trailer to the exclusion of the wife.

The wife is to retain her Nissan X-Trail motor vehicle to the exclusion of the husband.

10.

The husband is to retain all his right, title and interest in the business known as [G] to the exclusion of the wife.

11.

The parties are to retain all bank accounts and superannuation policies in their own name, and all other items of personalty including furniture, furnishings, jewellery and all other items of purely personal use and adornment currently in their respective possession to the exclusion of the other.

12.

The husband is to indemnify the wife and keep her indemnified in respect of the following liabilities:

(a) A personal loan from Mr B; and

(b) A taxation debt owing to the Australian Taxation Office.

13.

The wife is to indemnify the husband and keep him indemnified in respect of the following liabilities:

(a) A personal loan from Ms K and Mr K; and

(b) A car loan from ESANDA; and

14.

If either party seeks an order for costs he or she must file and serve an Application in a Case setting out the amount of costs sought together with an affidavit setting the way in which and the basis upon which those costs are calculated within one (1) month of the date of 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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