FAMILY COURT OF AUSTRALIA
| BOURKE & BOURKE AND ANOR (FINAL HEARING COSTS) | [2010] FamCA 199 |
| FAMILY LAW – PROPERTY – Husband has acted to frustrate the wife’s property application – s 106B application – Third party corporate entity – Trial involving wife and third party only – Third party director is good friends with husband – Consideration of transferral of property from husband to third party – Whether the transferral was under the husband and third party’s joint venture agreement – Wife asserted the transaction was a sham – Consideration of the standard of proof required to establish a sham transaction – Whether the non-fraudulent transferral falls under s 106B – Consideration of third party interests |
| Family Law Act 1975 (Cth) ss 79, 90AE(2)(b), 106B, 117,117(2A) |
| Abdullah and Abdullah (1981) FLC 91-003 |
| APPLICANT: | Ms Bourke |
| RESPONDENT: | Mr Bourke |
| 3rd PARTY: | S Finance Pty Ltd |
| FILE NUMBER: | MLF | 2814 | of | 2006 |
| DATE DELIVERED: | 17 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 4 & 5 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ham |
| SOLICITOR FOR THE APPLICANT: | Callahans Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance by the Husband |
| COUNSEL FOR THE INTERVENOR: | Mr Davis |
| SOLICITOR FOR THE INTERVENOR: | McBain Lawyers |
Orders
IT IS ORDERED THAT
Pursuant to s 106B of the Family Law Act 1975 (as amended), the transfer of the property situated at Unit 3, W, in the State of Victoria, being the whole of the land described in Certificate of Title Volume … Folio … (“the W property”) from the husband to S Finance Pty Ltd A.C.N. … (‘the company”) be set aside.
The company shall, within 14 days of the date of these Orders do all such things, sign all such documents and pay all such reasonable fees as might be necessary to effect the transfer of the W property to the husband free of encumbrance.
As and by way of settlement of property pursuant to s 79 of the Family Law Act:
(a)the husband shall do all such things and sign all such documents as…
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- Bourke v Bourke (Final Hearing Costs) [2010] FamCA 199
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- [2010] FamCA 199
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CaseChat Overview and Summary
The court was required to determine whether the transfer of the property to S Finance Pty Ltd should be set aside pursuant to section 106B of the *Family Law Act 1975* (Cth). Additionally, the court had to consider the wife's entitlement to the property as a settlement of property under section 79 of the *Family Law Act 1975* (Cth), and the appropriate orders to give effect to these determinations, including the appointment of a Registrar to execute necessary documents. The court also addressed the wife's application under Part VIIIAA of the *Family Law Act 1975* (Cth), which was dismissed.
Murphy J reasoned that the transfer of the property to the company was to be set aside, ordering the company to transfer the property back to the husband free of encumbrance. Subsequently, as part of the property settlement, the husband was ordered to transfer the property to the wife, making her solely entitled to it. The court also appointed a Registrar to execute documents if necessary and issued injunctions restraining the husband and the company from dealing with the property other than as directed. The court reserved the question of costs for proceedings on 30 January 2009 and the trial, requiring further written submissions from the parties.
Orders
Orders of the court
IT IS ORDERED THAT
1.
Pursuant to s 106B of the Family Law Act 1975 (as amended), the transfer of the property situated at Unit 3, W, in the State of Victoria, being the whole of the land described in Certificate of Title Volume … Folio … (“the W property”) from the husband to S Finance Pty Ltd A.C.N. … (‘the company”) be set aside.
2.
The company shall, within 14 days of the date of these Orders do all such things, sign all such documents and pay all such reasonable fees as might be necessary to effect the transfer of the W property to the husband free of encumbrance.
3.
As and by way of settlement of property pursuant to s 79 of the Family Law Act:
(a) the husband shall do all such things and sign all such documents as might be necessary to transfer to the wife, contemporaneously with the transfer contemplated by paragraph 2 of these orders, the W property;
(b) Consequent upon the transfer of the W property, the wife be solely entitled to same to the exclusion of any right, title, claim or interest in and to the said property by either the husband or the third party;
(c) The wife be solely entitled to any and all such property of the husband or wife or either of them, of whatever type or description, to the exclusion of any right, title, claim or interest in or to the said property by the husband.
4.
Pursuant to s 106A of the Family Law Act 1975 (as amended), a Registrar of this Court, namely Registrar Field, be appointed to execute all such deeds, transfers or other documents as are necessary to give effect to these Orders:
(a) In the case of the husband, forthwith;
(b) In the case of the company, upon an affidavit being filed by the solicitor for the wife deposing to non-compliance with paragraph 2 of these orders, together with an affidavit of service of that affidavit upon the third party.
5.
The husband and the company each respectively be restrained and an injunction issue restraining each of them from transferring, encumbering or otherwise dealing with the W property save as to give effect to these orders.
6.
The husband and the company each respectively be restrained and an injunction issue restraining each of them from authorising or directing any person to act on their behalf or in their stead in transferring, encumbering or otherwise dealing with the W property save as to give effect to these orders.
7.
The wife’s application for orders pursuant to Part VIIIAA of the Family Law Act 1975 (as amended) is dismissed.
8.
The response of the company, including its defence, be dismissed.
Costs of Proceedings on 30 January 2009
9.
The question of the costs of and incidental to the proceedings of 30 January 2009 be reserved to the trial.
10.
Each party shall provide, within 21 days of the date of these Orders, such further written submissions on the issue of the costs of the proceedings of 30 January 2009 as they might wish in light of the findings of the court at trial contained in the reasons delivered herewith.
11.
Each party shall:
(a) Deliver any written submissions made in accordance with paragraph 9 of these Orders via e-mail to Murphy J’s associate provided same are provided contemporaneously therewith to each other party to the proceedings; and
(b) Indicate therein whether they each consent to the issue being determined in chambers.
Costs of Trial
12.
Any application for costs in respect of the trial of this action be contained within written submissions made in support of any such order, to be delivered within 21 days of the date of these Orders which such submissions shall
(a) be delivered via e-mail to Murphy J’s associate provided same are provided contemporaneously therewith to each other party to the proceedings; and
(b) Indicate therein whether consent is given to the issue being determined in chambers.
Further Hearing/s in Respect of Costs
13.
In the event that either or both parties request an oral hearing in respect of the issue of the costs of the proceedings on 30 January 2009 or the trial, such hearing shall occur at a time and on a date to be advised and shall, if Murphy J is not sitting in the Melbourne Registry, occur, if at all possible, by video-link or, failing that, telephone link.
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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