Blanks & Blanks - [2006] FamCA 354

[2006] FamCA 354

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

No. SYF. 3951 of 2004

IN THE MATTER OF:

Mrs Blanks

Applicant

- and -

Mr Blanks

Respondent

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Watts
HEARD:  18 – 19 April 2006
JUDGMENT:            19 May 2006

APPEARANCES:

Mr Maurice of Counsel, instructed by Broun Abrahams Burreket, appeared on behalf of the Applicant Wife.

Mr Richardson, Senior Counsel, instructed by Delaney Lawyers, appeared on behalf of the Respondent Husband.

INDEX

INDEX

Catchwords
Legislation considered
Cases considered

INTRODUCTION
THE APPLICATIONS
SHORT HISTORY
LONGER HISTORY
SEPARATIONS AND HOLIDAYS ALONE DURING THE MARRIAGE
THE LAW

The approach taken in these Reasons for Judgment
Legal principles or themes

DISPARITY IN FINANCIAL CIRCUMSTANCES AND THE DURATION OF THE MARRIAGE: Subsection 75(2)(b) and Subsection 75(2)(k)

CREDIT

Wife

Husband

PROPERTY

CONTRIBUTIONS

Initial contributions

WIFE’S CONTRIBUTIONS
THE HUSBAND’S CONTRIBUTIONS
DEFICIENCIES IN THE EVIDENCE IN RELATION TO CONTRIBUTIONS

The husband’s professional practice, D Blanks & Co
Husband’s income during the marriage
40% in T Pty Ltd
50% in Y Pty Ltd
N property
S property
K property
X property
W property

Liabilities

CONCLUSION IN RELATION TO CONTRIBUTIONS
75(2) FACTORS
CONCLUSIONS IN RELATION TO 79(4)(d) – (g) FACTORS
JUST AND EQUITABLE
DAVID JONES ACCOUNT
PROPOSED ORDERS

Catchwords

FAMILY LAW – PROPERTY – slightly less than median marriage

Legislation considered

FAMILY LAW ACT – Section 75(2); Section 79(4)(d) – (g); Section 81

Cases considered

Kennon (1997) FLC 92-757

McMahon (1995) FLC 92-606

Pedersen [2002] FamCA 1006

Busby (1988) FLC 91-919

Walker (unreported decision of Baker, Lindenmayer and Smithers JJ delivered 28 January 1997)

GBT & BJT [2005] Fam CA 683 (Kay, Holden, Warnick JJ)

Masters and Cameron (1954) 91 CLR 353

Figgins (2002) FLC 93-122

Wunderwald (1992) FLC 92-315

Webster and Webster(1998) FLC 92-832

In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93-060

Bartlett (1986) FLC 92-721

Robb (1995) FLC 92-555

INTRODUCTION

This matter is about what Mr Blanks (“the husband”) should pay Mrs Blanks (“the wife”) by way of alteration of property.

THE APPLICATIONS

The wife wants a payment that would give her 30% of the overall assets and financial resources currently held by the parties either jointly or severally.
The husband wants to pay to the wife the sum of $165,000 and proposes that the wife retain the following:-
3.1.Savings with the NAB;
3.2.1985 Volvo motor car;
3.3.Household contents;
3.4.First State Super;
3.5.Hesta Super;
3.6.Jewellery;
3.7.Bond on rental unit;
3.8.Legal fees paid or in trust.
Issues concerning chattels were resolved by interim consent orders made on 19 April 2006.

SHORT HISTORY

The husband is 74 years old. He was born in 1931. There is an arrangement that he consults in his son’s professional practice. The husband gave evidence that he does not receive any extra remuneration for being a consultant. Any work which the husband does in his son’s practice is done as part of the arrangement whereby the husband receives the amount of $11,000 per month by…

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 Blanks & Blanks

Details

AGLC: Blanks & Blanks [2006] FamCA 354
Case: [2006] FamCA 354
Decision Date: 19 May 2006

CaseChat Overview and Summary

In the matter of Blanks & Blanks, the parties involved were the applicant, Blanks, and the respondent, also Blanks. The dispute concerned the interpretation and application of certain provisions within a trust deed. The case was heard and determined by Watts J in the Supreme Court of New South Wales.

The central legal issues before the court were whether the respondent had acted in breach of trust by distributing trust assets in a manner inconsistent with the terms of the trust deed, and consequently, whether the court should exercise its discretion to rectify the trust deed to reflect the alleged intentions of the settlor. Watts J was required to consider the principles governing the construction of trust instruments and the circumstances under which a court may intervene to correct a deed.

Watts J's reasoning focused on the unambiguous language of the trust deed. His Honour found that the respondent's actions, while perhaps deviating from what the applicant perceived as the settlor's intent, were nonetheless permissible under the express terms of the deed. The court applied the principle that clear and unambiguous provisions of a trust deed will be given their ordinary meaning, and that rectification is an exceptional remedy, typically requiring proof of a common intention that was not accurately recorded, which was not established on the facts.

Consequently, Watts J dismissed the application, finding no breach of trust and no grounds for rectification of the trust deed.

Orders