BRADY & RACHELLA

[2014] FamCA 639

FAMILY COURT OF AUSTRALIA

BRADY & RACHELLA [2014] FamCA 639

FAMILY LAW – PROPERTY – Where the parties relationship subsisted for over 30 years – Where the parties are in agreement regarding the majority of the issues for determination –Where the remaining issues for determination concern a travel club membership and whether a charitable donation and a family loan should be notionally added back to the pool

Family Law Act 1975 (Cth)

C & C [1998] FamCA 143
Gollings and Scott (2007) FLC 93-319

APPLICANT: Ms Brady

RESPONDENT:	Mr Rachella
FILE NUMBER:	HBC	993	of		2012

DATE DELIVERED: 29 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 29 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Charmaine Gibson
SOLICITOR FOR THE APPLICANT:	Charmaine Gibson, Barrister and Solicitor

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Rees R & Sydney Jones

Orders

It is ordered that:

1. These Orders are made by way of alteration of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth).

Division of Funds in Joint Bank Accounts

1. In relation to all bank accounts held in the name of the Applicant and the Respondent jointly, save for NAB Bank account number … (“the Bills Account”), and NAB Bank account number … (“the Rent Account”) unless otherwise agreed in writing the parties are to, each respectively, do all things and sign all documents necessary to:

   a.   withdraw all funds held in any such bank account and divide all such funds equally between the Applicant and the Respondent, provided the Applicant receives no less than $150,000; and

   b.   close each such bank account.

Transfer of the B Street Property

1. Within twent-eight (28) days the Respondent is to sign all documents and do all things necessary to transfer to the Applicant all of his right, title and interest in the property located at B Street, C Town in the State of Queensland more particularly described as Lot 14 on Crown Plan …, County of D, Parish of C Town on Title Reference … (“the B Street property”), including all insurance policies in respect of that property. 

1. The Applicant is entitled to retain for her sole use and benefit all rent derived from the B Street property from the date of these Orders.

Transfer of the E Town Property

1. Within twenty-eight (28) days the Applicant is to sign all documents and do all things necessary to transfer to the Respondent all her right, title and interest in the former matrimonial home located at F Street, E Town in the State of Queensland more particularly described as Lot … on Registered Plan …, County of G, Parish of E Town on Title Reference … (“the E Town property”), including all insurance policies in respect of that property.

Sale of All Other Real Properties

1. That within seven (7) days the parties shall sign all documents and do all things necessary to cause each of the following properties (collectively referred to in these Orders as “the properties to be sold”) to be listed for sale by private treaty:

   a.   the property at H Street, C Town in the State of Queensland more particularly described as Lot … on Crown Plan …, County of D, Parish of C Town on Title Reference …; 

   b.   the property at I Street, C Town in the State of Queensland more particularly described as Lot … on Crown Plan …, County of D, Parish of C Town on Title Reference …;

   c.   the property at J Street, C Town in the State of Queensland more particularly described as Lot … on Crown Plan …, County of D, Parish of C Town on Title Reference …;

   d.   the property at K Street, C Town in the State of Queensland more particularly described as Lot … on Crown Plan …, County of D, Parish of C Town on Title Reference …; and

   e.   the property at L Street, M Town in the State of Queensland more particularly described as Lot … on Registered Plan …, County of N, Parish of O on Title Reference ...

2. Within seven (7) days, each of the properties to be sold is to be listed for sale by private treaty with such real estate agent (“the real estate agent”) as is agreed between the parties and failing agreement within seven (7 days), the real estate agent will be as nominated by the then president of the Real Estate Institute of Queensland at the request of the parties, or either of them. 

3. The list price of each of the properties to be sold is to be such amount as is agreed between the parties, and failing agreement, the list price will be as nominated by the real estate agent.

1. The sale price of each of the properties to be sold is to be such amount as is agreed between the parties.

10. The parties are to cooperate in every way with the real estate agent in relation to the marketing of each of the properties to be sold, including ensuring that each property is in good order at the time of an inspection by any prospective buyer.

11. In relation to the sale of each of the properties to be sold, upon agreement being reached between the parties to accept an offer, each of the parties is to execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them.

12. The contract of sale for each of the properties to be sold is to provide for completion within thirty (30) days after the date of the contract, unless otherwise agreed in writing. 

13. The proceeds of the sale of each of the properties to be sold are to be applied in the following manner and priority, unless otherwise agreed in writing:

a.   payment of the agent’s commission and advertising and other expenses (if any) payable on sale;

b.   payment of any legal costs and outlays relating to the sale; and

c.   the balance of the sale proceeds is to be distributed between the parties in accordance with Orders 16 and 17 hereof.

14. Upon the sale of the first of the properties to be sold:

a.   the parties shall jointly instruct an accountant (“the accountant”) to calculate the amount of tax payable in relation to the sale of the properties to be sold; and

b.   in the event that the accountant cannot caclulate the likely tax payable, then the accountant is to be jointly instructed to calculate an amount that should be retained by way of provision for the likely tax, and the amount so calculated is to be paid into the trust account of the Respondent’s solicitors and held for the benefit of both parties pending assessment of the tax;

c.   otherwise, the tax that has been so calculated is to be paid; and

d.   the balance is to be divided between the parties as follows:

i.   the first $362,000 is to be paid to the Respondent; and

ii.the balance is to be divided between the parties equally.

15. In the event that the net sale proceeds of the first property sold are insufficient to satisfy Order 14(a) then the net sale proceeds of the second property to be sold shall be applied in the same manner as the first property, until such time as the Applicant has received $362,000 in total.  Otherwise the proceeds of sale of each subsequent property shall be dealt with as in accordance with Order 16 below.

16. Upon the subsequent sale of each of the properties to be sold, and as such property is sold:

a.     the parties shall jointly instruct an accountant (“the accountant”) to   calculate the amount of tax payable in relation to the sale of the   properties to be sold; and

b.in the event that the accountant cannot calculate the likely tax payable, then

the accountant is to be jointly instructed to calculate an amount that should

be retained by way of provision for the likely tax, and the amount so

calculated is to be paid into the trust account of the Respondent’s solicitors

and held for the benefit of both parties pending assessment of the tax;

c.otherwise the tax that has been so calculated is to be paid; and

d.the balance is to be divided between the parties equally.

Maintenance of the Properties to be Sold Pending Sale

17. Pending the sale of the properties to be sold, the parties are, each respectively, to ensure that:

a.   the regular outgoings in relation to each such property, which includes rates, insurances, any water or electricity bills, and other fixed bills, are paid from the Bills Account; and

b.   otherwise no other withdrawals are made from the Bills Account unless agreed in writing;

c.   all rent received from the tenancy of any such property is paid into the Rent Account; and

d.   no withdrawals are made from the Rent Account unless agreed in writing, save for transfers to the Bills Account.

18. Upon the sale of the last of the properties to be sold:

a.   all funds in the Bills Account and the Rent Account are to be withdrawn and divided equally between the parties, and

b.   the Bills Account and the Rent Account are to be closed.

19. Pending the sale of the properties to be sold, the parties are to be jointly responsible for any expense in relation to each of those properties that falls outside the expenses referred to in Order 17 and in that regard:

a.   in the event that either party forms the view that it is necessary to incur expenditure in relation to the maintenance of any of the properties to be sold, then that party is to notify the other accordingly before incurring any such expenditure;

b.   upon receipt of such notice, the party receiving such notice is to advise the party sending such notice within forty-eight (48) hours of receipt of such notice of any objection that that party may have to the expenditure being proposed; and

c.   in the event that no such objection is notified, the party suggesting the expenditure may incur the expenditure, and in which case that party is entitled to be reimbursed for one half of that expenditure when the division of funds in accordance with Order 14 below is undertaken; and

d.   in the event that objection is notified, the party suggesting the expenditure may, at that party’s discretion, incur the expenditure and in which case that party shall be solely responsible for the expenditure so incurred.

Superannuation

20. The Husband is to retain his interest in the MLC Superannuation Fund at a value, for the purposes of these Orders, of $179,369.06

21. The parties are to each resepctively do all things necessary to cause the P Super Fund to sell the property at 2 B Street, C Town more particularly described as Lot … on Crown Plan …, County of D, Parish of C Town on Title Reference … (“the 2 B Street property”).

22. In relation to that sale:

a.   within seven (7) days, the property is to be listed for sale by private treaty with such real estate agent (“the real estate agent”) as is agreed between the parties and failing agreement within seven (7) days, the real estate agent will be as nominated by the then president of the Real Estate Institute of Queensland at the request of the parties, or either of them;

b.   the list price of the property is to be such amount as is agreed between the parties, and failing agreement, the list price will be as nominated by the real estate agent;

c.   the sale price of each of the properties to be sold is to be such amount as is agreed between the parties; and

d.   the parties are to cooperate in every way with the real estate agent in relation to the marketing of the properties to be sold, including ensuring that each property is in good order at the time of an inspection by any prospective buyer.

23. Upon the sale of the 2 B Street property, the parties are, each respectively, to jointly cause the accountants for the P Super Fund to prepare Financial Statements of that fund up to date, and those statements are to include statements of the member interests of the Applicant and the Respondent respectively.

24. Upon completion of the preparation of the Financial Statements the parties are to calculate what amount has to be split from the interest of either the Applicant or the Respondent in the P Super Fund, in favour of the other party, in order to achieve an equalisation of the overall superannuation interests of both parties, taking into account the interests that the parties have in the P Super Fund, and the interest that the Respondent has in the MLC Superannuation Fund.  The amount that is so calculated is to be the Base Amount for the purposes of Orders 26 to 28 below.

25. In the event that the Base Amount is an amount that has to be split from the Applicant’s interest in the P Super Fund then the following shall have effect:

a. pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustees of the P Super Fund make a splittable payment from the interest held by the Applicant, the Trustees shall pay to the Respondent or her administrators, executors beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the Applicant would have had in the P Super Fund but for these Orders; and

b.   for the purposes of paragraph 26(a) the operative time will be four (4) days following the service of these Orders on the Trustees of the Scheme.

26. In the event that the Base Amount is an amount that has to be split from the Respondent’s interest in the P Super Fund then the following shall have effect:

a. pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustees of the P Super Fund make a splittable payment from the interest held by the Respondent, the Trustees shall pay to the Applicant or her administrators, executors beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the Respondent would have had in the P Super Fund but for these Orders; and

b.   for the purposes of paragraph 27(a) the operative time will be four (4) days following the service of these Orders on the Trustees of the Scheme.

Q Club

27. In relation to the membership that the parties currently hold jointly in the Q Club:

a.   the Applicant will transfer to the Respondent all right, title and interest that she may have in or to that membership; and

b.   the Respondent is to pay to the Applicant the sum of $34,000.

Other Property

28. The Applicant relinquish and the Respondent retain all right, title and interest in the following assets, liabilities and financial resources:

a.   the Respondent’s motor vehicle;

b.   bank accounts in the sole name of the Respondent;

c.   superannuation in the sole name of the Respondent;

d.   furniture and chattels in the possession of the Respondent;

e.   funeral and life insurance policies in the name of the Respondent; and

f.   the Respondent’s MLC Superannuation.

29. The Respondent relinquish and the Applicant retain all right, title and interest in the following assets, liabilities and financial resources:

a.   the Applicant’s motor vehicle;

b.   bank accounts in the sold name of the Applicant;

c.   superannuation in the sole name of the Applicant;

d.   furniture and chattels in the possession of the Applicant; and

e.   funeral and life insurance policies in the name of the Applicant.

30. Save and except as otherwise provided in these Orders, the Respondent and Applicant shall each be entitled as the sole legal and beneficial owner of all items of property including superannuation entitlement, personal effects and chattels currently in the possession, held in the name of or control of each of them respectively.

31. Save and except as otherwise provided herein, the Respondent shall indemnify the Applicant and keep the Applicant indemnified with respect to all liabilities incurred by the Respondent in his name both prior to and subsequent to the date of the Orders.

32. Save and except as otherwise provided herein, the Applicant shall indemnify the Respondent and keep the Respondent indemnified with respect to all liabilities incurred by the Applicant in her name both prior to and subsequent to the date of the Orders.

33. Both parties shall sign all documents and do all things necessary to give effect to these Orders. 

34. In the event that either party fails, refuses or neglects to execute (within ten (10) days of a written request to do so) any documents or do anything necessary to give effect to the terms of these orders, then pursuant to s 106A of the Family Law Act 1975 (Cth):

a.the Registrar or Deputy Registrar of the Family Court of Australia at Rockhampton shall be and is hereby appointed to execute any deed or instrument in the name of the defaulting party and to do all such acts and things necessary to give validity to the operation of the deed or instrument and to give validity and operation to these Orders; and

b.the affidavit of the solicitor for the party seeking to give effect to these Orders shall be sufficient proof of the default of the other party.

35. Unless otherwise specified in these Orders each party shall pay their own costs of and incidental to these property settlement proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brady & Rachella has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: HBC 993 of 2012

Ms Brady

Applicant

And

Mr Rachella

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are property settlement proceedings pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) between Ms Brady (whom for convenience I will refer to as “the wife”) and Mr Rachella (whom for convenience I will refer to as “the husband”) after the breakdown of their de facto relationship. The existence of a de facto relationship within the meaning of Part VIIIAB of the Act is not in dispute but the parties differ as to the date of their final separation.

2. The wife is currently 76 years of age, having been born in 1937 and the husband is currently 60 years of age, having been born in 1954.  The parties commenced cohabitation in 1981.  The wife contends that separation occurred in August 2012 when she relocated to R Town, Tasmania and the husband remained living in the former matrimonial home in E Town. 

3. On the husband’s case, after the wife relocated to R Town, he visited her on two occasions in September and November 2012.  In his affidavit, he deposes to not being aware that the wife wanted to separate until he was served with her Initiating Application in February 2013.  Moreover in his oral evidence under cross‑examination, he acknowledged that when he visited in November 2012 it was clear to him that the wife had formed the intention to separate.  I note in passing that on her version of events, the wife says that she initially went to Tasmania on a holiday and thereafter decided to separate.

4. On either version, this is a long relationship of some 31 or 32 years duration ending in voluntary separation.  There is no question as to the just and equitable requirement being satisfied.  There are no children of the relationship; however both parties have adult children from previous relationships.  The husband has two adult children, namely Mr S and Mr T, whilst the wife has five adult children, namely Ms U, Ms V, Ms W, Ms X and Ms Y.  

5. When the parties commenced cohabitation, the wife’s children were all adults and living independently and they did not reside with the parties at any time during the relationship.  For the majority of the relationship, the husband’s children lived with their mother in New Zealand save for a period of two years or so when the children were in primary school and resided with the parties before they returned to live with their mother in New Zealand.

6. These proceedings were initiated by the wife’s Application for final property orders.  As Exhibit 1 reflects, the parties are not apart on the items or values of individual assets.  The parties agree on the values for all their real properties and, indeed, have reached agreement on the distribution of those properties in terms of which properties are to be sold and which are to be retained by either of them. 

1. They also agreed by this morning at the commencement of the trial that their respective motor vehicles should be removed from inclusion in the pool of assets.  And I infer from that, that neither contend that it is necessary for the inclusion of either item to achieve just and equitable orders in terms of adjusting their interest in other property, albeit that the Court recognises that those assets exist. 

2. Based on Exhibit 1, the parties contend that their existing net overall property interests are in the order of $3.8 million net, and I will replicate that Balance Sheet in these Reasons:

   BALANCE SHEET

Ownership	Description		Applicant wife’s value	Respondent husband’s value
ASSETS
1. Joint	F Street, E Town		$  500,000	$
2. Joint	L Street, M Town		$  450,000	$
3. Joint	J Street, C Town		$  400,000	$
4. Joint	H Street, C Town		$  350,000	$
5. Joint	I Street, C Town		$  350,000	$
6. Joint	K Street, C Town		$  350,000.00	$
7. Joint	B Street, C Town		$  700,000.00	$
8.Wife	Motor vehicle 1		$    10,000.00	$
9.Husband	Motor vehicle 2		$    20,000.00	$
10.Joint	Bank accounts		$   360,104.00	$
11. Wife	Bank account		$     NIL	$
12. Wife	ANZ Term Deposit		$   162,727.00	$
13. Husband	Bank accounts		$       1,400.00	$
14.Husband	Loan to Mr S		$     21,175.00	$
15.Joint	Q Club Membership		$    N./K	$
Total	$3,675,40.00 [sic]	$      0
ADDBACKS
16. Husband	Donation to Golf Club (membership)		$     5,000.00	$
Total	$      5,000.00	$      0
LIABLIITIES
17. Joint	L Crescent CGT		$   146,750.00	$
18. Joint	K Street CGT		$   123,397.00	$
19. Joint	H Street CGT		$     80,750.00	$
20. Joint	I Street CGT		$   161,500.00	$
21. Joint	J Street CGT		$   141,336.00	$
Total	$   653,733.00	$
SUPERANNUATION
Member	Name of Fund	Type of interest	Applicant wife’s value	Respondent husband’s value
22.Husbaned	MLC Super	$    179,369.00	$
23.Joint	P Super	SMSF	$   640,777.00	$
Total	$   820,146.00	$
Overall Total	$3,805,819.00	$      0

1. Within the Balance Sheet, though, there are effectively three issues.  Firstly, there is an issue as to the Q Club membership held jointly.  It is not in issue that it has a current value of $68,000, nor is it in issue that the husband seeks an order that the wife transfer her half‑interest in that membership to him for half the valuation, namely the sum of $34,000, but the wife contends that the sum paid by the husband should be $50,000. 

2. The wife further contends that a donation made to a golf club in the amount of $5000 ought be notionally added-back in assessing a pool for division.  There is also an issue as to what the wife asserts to be a loan by the husband to his son Mr S in the amount of $21,175, which she also seeks to have notionally added back to the pool of assets for the purpose of division. 

3. There is no issue between the parties as to their contributions.  They agree that they each came into the relationship with minimal assets and through their joint effort and contributions towards their business activities and the acquisition of various real properties over the course of their relationship built up the property pool which now exists.  I note in passing that during the relationship the parties established two businesses, namely Z Pty Ltd in or around 1987/1988 and AA Pty Ltd in 1988. 

4. The husband deposes that AA Pty Ltd was jointly operated by the parties with Z Pty Ltd.  It seems the husband managed the books and undertook manual labour while the wife worked in the administration side of the business, engaging in secretarial and receptionist work.  Both parties continued in their respective roles in the business throughout their relationship until they retired.  During the relationship, the parties also purchased another business called BB Pty Ltd, although sold it a couple of years later. 

5. Over the course of the relationship, the parties jointly acquired nine real properties.  The parties still own eight of those properties, with the exception of the property at CC Street, E Town sold during the relationship.  The parties were able to reach agreement as to the values of the remaining properties and assets, as reflected in Exhibit 1. 

6. Moreover, they were able to reach agreement that the Court should treat their contributions to the acquisition and maintenance of those properties as being equal.  That is, both parties contended that there ought be a 50 per cent division of their property pool.  Neither party contended for any adjustment for future needs or those factors.  I note in passing that in paragraphs 28 to 68 of the husband’s affidavit under the heading Acquisition and Sale of Assets, the husband sets out the details of the purchase of the relevant real properties. 

7. In relation to the issues left for determination, the first of those to be dealt with is the alleged loan to the husband’s son, Mr S.  It is not in issue that in June 2012 Mr S was seriously injured when he was involved in a car accident resulting in one of his legs being amputated.  To assist him with his medical expenses after the accident, between 30 August 2012 and 3 September 2012, Mr S received various amounts, totalling $21,175 from the parties’ joint bank account. 

8. On the wife’s version, this ought be treated as a loan to Mr S and on that basis included in the pool of assets for division.  The husband maintains that it should not be treated as a loan as there was no agreement made at any time with Mr S for the moneys to be repaid.  The husband deposes that the payments made to Mr S were made with the consent of the wife and were in keeping with agreements generally between the parties that they would help out their children if they needed it financially during the relationship.  The husband maintains that prior to these proceedings, there was never any discussion between the parties or between the wife and Mr S that Mr S should be required to repay these moneys.

9. In Gollings and Scott (2007) FLC 93-319, the Full Court of the Family Court cited with approval the decision of the Full Court in C & C [1998] FamCA 143, when examining questions of asserted add-backs. In that case, an add-back of $15,000 into a pool of $3 million. There the Full Court said [45]:

   Although is it not one of the grounds of appeal, we would also like to make the observation that we were troubled by her Honour adding-back into the pool of assets the sum of $15,000 provided by the wife to [A] to enable her to place a deposit on a unit.  The provision of modest amounts of capital by parents to their adult children to enable the children to get a start in life is a normal experience in our society.  In a case involving the magnitude of the assets of this case, in our view it is unreasonable to conduct a microscopic examination of each offender the parties’ items of post‑separation expenditure with a view to determining whether or not it is appropriate that they be brought into account in dividing up the asset pool between them.  The cases which deal with notional add-backs are generally examples of circumstances in which it would be clearly unjust and inequitable not to take those matters into account.  (See Kowaliw (1981) 7 Fam LR 13; [1981] FLC 91-092, esp at FLC 76,645; Townsend (1994) 18 Fam LR 505; [1995] FLC 92-569; Farnell, (1995) 20 Fam LR 513 (expenditure on legal costs notionally added back because of s 117)).

10. In this case, the funds were advanced prior to the parties’ separation on either of their versions.  I am not satisfied that it would be clearly unjust and inequitable not to add-back the amount sought to be added-back by the wife.  I am not satisfied that the amount ought be treated as a loan. 

11. In relation to donation to the golf club of $5000, amounting on my maths to about .01 per cent of the pool in issue, it is to be noted that on 25 March 2013 the parties’ company, AA Pty Ltd Pty Ltd made a donation of $5000 to the E Town Club.  Annexure “TPPR1” to the husband’s affidavit filed 24 January 2014 is a copy of the tax invoice issued by the golf club.  Again, on the wife’s version of things, that donation should be included as a notional asset in the pool to be added-back against the husband.

12. On the husband’s evidence, this was a donation made by the company in keeping with the history of the company making annual donations to local sporting clubs as a matter of benefit to the community.  The husband deposes that there was nothing about this donation that was significantly different in nature to donations historically made in previous years, which were all done with the wife’s knowledge and consent and were tax deductible. 

13. Given the amount of money involved, it is de minimis.  Moreover, it seems to me that analysis of this item as a notional add-back would require some kind of audit of what each party has done in fine detail with any money over the period since their separation to date.  I reject the wife’s contention that this amount should be added-back to the notional pool. 

14. Finally, with respect to the Q Club membership, the issue descends to one of whether the wife should receive $50,000 for her half-share in the club or whether she should accept $34,000, being half of its assessed value.  It is not in issue that, during the relationship, some 10 years ago, the parties first obtained a membership with the Q Club.  The membership, on the husband’s evidence, involved yearly levies and, in exchange, the parties received the option to purchase several holidays each year, either locally or internationally, at significantly discounted rates.  The husband deposes that, in June 2012, the parties agreed that they would apply $100,000, being the proceeds they received from the sale of some stock of AA Pty Ltd, towards the travel club membership.

15. The wife did not challenge that deposition by the husband and it can be accepted.  In October 2012, the husband paid out the moneys owing on the membership.  That arose in circumstances where, in June 2012, some further documents had been executed by the parties with respect to the Q Club membership, involving an amount in the order of $160,000.  The wife effectively contends, in its final iteration, rather than this being an add-back, that the husband’s conduct should be characterised as wanton, reckless or negligent or unreasonable, to the extent that he ought pay an additional $16,000 over and above the value of the membership to her for her half share.

16. I am not satisfied that the conduct can legitimately be characterised as wanton, reckless or negligent, nor am I satisfied that the husband assumes some greater responsibility than does the wife for the contents of the documents both of them signed.  In particular, reference again is made to the husband’s evidence that there was a specific agreement about the application of $100,000 from the stock of AA Pty Ltd towards membership of the relevant scheme.  On that basis, I do not accept that there should be some notional add-back or some assessment that the husband should be obliged to pay $50,000, rather than $34,000, for the wife’s share.

17. Otherwise, the parties were in disagreement about some mechanics of some of the orders to give effect to an outcome.  I propose having delivered these brief Reasons, to allow the parties an opportunity to discuss the mechanics of the orders in those respects, in the hope that agreement will be achieved as to the actual form of the orders to be made.

Orders

1. The parties have now agreed upon a form of orders to give effect to these Reasons which are now provided to me and which I will admit and mark as Exhibit 2 subject to a revised form of those orders correcting typographical errors and the like being provided to the Court.  I make orders in those terms.

Costs

1. There is an application on behalf of the husband that the wife pay his costs of these proceedings on and from January of this year up to and including today.  In the alternative, the husband seeks an order for his costs with respect to the period on and from 25 July 2014, when his Case Information document was provided.  It is clear, from the reasons earlier expressed, that the issues which remained between the parties which required determination by the Court were exceedingly narrow issues.  In effect, those issues were three issues of

   
   

   add-backs or, in one respect, a waste argument, but, in money terms, totalled differences as between the parties of about $42,000 in an overall pool of about $3.8 million.

2. The husband has succeeded on his case with respect to each of those three issues.  However, it seems to me that it is clear, on a review of the material, that prior to, and indeed even after the Case Information document, there were issues of substance remaining between the parties.  Prior to the husband’s recent Case Information document, live issues existed as between the parties as to which of them ought receive a transfer of relevant real properties or which were to be sold.  Whilst the Case Information document filed recently by the husband substantially reduced those issues, there did remain matters in relation to capital gains taxation and the distribution of proceeds of the sales that needed to be resolved by the machinery of orders.

3. On the husband’s Case Information document, there was a substantial difference between the sales of those properties and those sale proceeds being retained until the last of the properties were sold; until capital gains taxation issues were resolved.  In the event, the orders negotiated by the parties and which I have made reflect a compromise being reached between the parties as to the distribution of sale proceeds, as well as other mechanics within the orders themselves, to deal with that substantial issue.

4. On that basis, I am not satisfied that there are circumstances within the meaning of s 117(2) of the Act justifying an order for costs in favour of the husband, either with respect to the period from January to date or with respect to the period sought in the alternative.

5. I therefore order that there be no order as to costs such as to disturb the effect under s 117(1) of the Act and that each party should bear their own costs of and incidental to these proceedings.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 July 2014.

Associate:

Date:  29 July 2014