Brennan v McGuire - [2011] FCA 148

FEDERAL COURT OF AUSTRALIA
Brennan v McGuire (No 2)
[2011] FCA 148

Citation: Brennan v McGuire [2011] FCA 148

Parties: ROBERT GEORGE BRENNAN v GLENYS FREYA MCGUIRE

File number: NSD 1147 of 2010

Judge: RARES J

Date of judgment: 17 February 2011

Date of hearing: 17 February 2011

Place: Canberra

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 14

Solicitor for the Applicant: M Reid of Phelps Reid

Counsel for the Respondent: The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NSD 1147 of 2010

BETWEEN:
ROBERT GEORGE BRENNAN
Applicant

AND:
GLENYS FREYA MCGUIRE
Respondent

JUDGE:

RARES J

DATE OF ORDER:

24 FEBRUARY 2011

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.On 31 March 2011, or such other time as is fixed by the Registrar, the parties shall attend at the Court in Canberra (the settlement appointment) and, subject to each party complying fully with his and her obligations in these orders, at that time:
(a) the applicant (Mr Brennan) shall deliver to the respondent (Ms McGuire):
(1)an executed transfer in registrable form of his entire right, title and interest in the property known as 14 Hobart Avenue, Forrest in the Australian Capital Territory (the property);

(2) the certificate of title for the property;
(3)all unpaid notices for rates, water and utility services in respect of the property in his possession;

(b) Ms McGuire shall deliver to Mr Brennan:
(1)an executed resignation as a director and secretary of Rob Brennan Facilitation and Training Services Pty Ltd (the company);

(2) an executed transfer of all shares held by her in the company;
(3)an executed assignment to Mr Brennan of all her rights against and interests in the company in all respects, including as trustee of the Rob Brennan Superannuation Fund (the fund);

(4) an executed indemnity in his favour in respect of any unpaid notices referred to in order 1(a)(3);

2. At the settlement appointment:
(a) Mr Brennan shall deliver to Ms McGuire:
(1)a members statement as at that date in respect of the interest of Wayne Kaufline (Mr Kaufline) together with a bank cheque in that sum in favour of Mr Kaufline or to such superannuation fund or trustee as he shall have directed in writing on or before 1 March 2011;
(2)executed indemnities in favour of Ms McGuire and Mr Kaufline in respect of any claim that the company may make against them or either of them as trustee of or in respect of the fund;

(b) Ms McGuire shall deliver to Mr Brennan:
(1) an executed resignation by Mr Kaufline as a director of the company;
(2)an executed assignment to Mr Brennan of all Mr Kaufline’s rights against and interest in the company;

(c)Subject to order 3(b) below, Ms McGuire shall deliver to Mr Brennan a bank cheque or bank cheques in the total sum of $775,000 in his favour or in favour of any person he may have nominated in writing not later than 1 March 2011.

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 Brennan v McGuire

Details

AGLC: Brennan v McGuire [2011] FCA 148
Case: [2011] FCA 148
Decision Date: 17 February 2011

CaseChat Overview and Summary

The case of Brennan v McGuire involved a dispute between the parties over the division of assets and financial obligations following the termination of their relationship and dissolution of their business partnership. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was the division of property, including the transfer of ownership of a residential property and shares in a company, as well as the allocation of financial responsibilities, including superannuation contributions and personal effects.

The court was tasked with determining the appropriate division of the parties' assets and liabilities, considering both the contributions made by each party to the relationship and the business, as well as their respective needs and financial circumstances. The court also had to address the specific obligations of the parties regarding the execution of various documents necessary for the transfer of assets and the settlement of financial obligations. Furthermore, the court needed to consider the implications of any failure by the parties to comply with the orders and the role of the Registrar in enforcing the court's directions.

In its reasoning, the court detailed the specific obligations of each party, including the transfer of property, execution of resignations and assignments, and the payment of sums owed. The court outlined the consequences of non-compliance with the orders, emphasising the role of the Registrar in ensuring that the terms of the settlement were carried out. The court also addressed the need for the parties to prepare and submit necessary documents for tax and superannuation purposes to ensure compliance with legal obligations. Finally, the court addressed the transfer of personal effects and the allocation of costs between the parties.

The final orders of the court required the parties to attend a settlement appointment to exchange specific documents, including property transfers, resignations, and financial payments. It also mandated the preparation and submission of necessary financial documents and the delivery of personal effects. The court appointed the Registrar to enforce compliance with the orders in the event of non-performance by either party and specified the consequences of such non-compliance. Finally, the court addressed the allocation of costs and the vesting of property interests upon compliance with the orders.

Orders

Orders of the court

1. On 31 March 2011, or such other time as is fixed by the Registrar, the parties shall attend at the Court in Canberra (the settlement appointment) and, subject to each party complying fully with his and her obligations in these orders, at that time:

(a) the applicant (Mr Brennan) shall deliver to the respondent (Ms McGuire):

(1) an executed transfer in registrable form of his entire right, title and interest in the property known as 14 Hobart Avenue, Forrest in the Australian Capital Territory (the property);

(2) the certificate of title for the property;

(3) all unpaid notices for rates, water and utility services in respect of the property in his possession;

(b) Ms McGuire shall deliver to Mr Brennan:

(1) an executed resignation as a director and secretary of Rob Brennan Facilitation and Training Services Pty Ltd (the company);

(2) an executed transfer of all shares held by her in the company;

(3) an executed assignment to Mr Brennan of all her rights against and interests in the company in all respects, including as trustee of the Rob Brennan Superannuation Fund (the fund);

(4) an executed indemnity in his favour in respect of any unpaid notices referred to in order 1(a)(3);

2. At the settlement appointment:

(a) Mr Brennan shall deliver to Ms McGuire:

(1) a members statement as at that date in respect of the interest of Wayne Kaufline (Mr Kaufline) together with a bank cheque in that sum in favour of Mr Kaufline or to such superannuation fund or trustee as he shall have directed in writing on or before 1 March 2011;

(2) executed indemnities in favour of Ms McGuire and Mr Kaufline in respect of any claim that the company may make against them or either of them as trustee of or in respect of the fund;

(b) Ms McGuire shall deliver to Mr Brennan:

(1) an executed resignation by Mr Kaufline as a director of the company;

(2) an executed assignment to Mr Brennan of all Mr Kaufline’s rights against and interest in the company;

(c) Subject to order 3(b) below, Ms McGuire shall deliver to Mr Brennan a bank cheque or bank cheques in the total sum of $775,000 in his favour or in favour of any person he may have nominated in writing not later than 1 March 2011.

3. In the event that Mr Brennan or Ms McGuire fails to perform an obligation under orders 1 or 2 above:

(a) the Registrar is appointed to and may prepare, settle the terms and sign any document that such party was ordered to sign and do all such things as are necessary to give effect to these orders;

(b) if Mr Brennan fails to deliver a bank cheque in favour of Mr Kaufline pursuant to order 2(a)(1), Ms McGuire shall deduct the amount that would have been payable by the fund to Mr Kaufline from the sum payable by her under 2 and, in lieu shall cause:

(1) a bank cheque for that sum payable to Mr Kaufline to be delivered to the Registrar who shall thereafter deliver that bank cheque to Mr Kaufline together with the executed indemnity referred to in order 2(a)(1) upon delivery by him or Ms McGuire to the Registrar of the documents referred to in order 2(b);

(2) a bank cheque for the balance of the sum of $775,000 to be delivered to Mr Brennan;

4. Not later than 20 February 2011, or further order:

(a) Mr Brennan and Ms McGuire shall sign, and authorise their respective accountants, superannuation funds and financial advisors to prepare and sign, all such documents as are necessary to enable:

(1) each of them to prepare any outstanding tax returns; and

(2) each of them and Mr Kaufline to prepare any outstanding superannuation returns;

(b) failing compliance with order 4(a), the Registrar forthwith is appointed to and shall sign any such documents;

5. Not later than 30 March 2011 Mr Brennan shall deliver or cause to be delivered to Ms McGuire at the property, in good order and condition:

(1) all her personal records and effects and those of her children (including Frith Brennan) and her family in his possession, custody or power; and

(2) without limiting order 5(1), the pastoral theme tapestry, dressing gown, camera tape and table (provided that the table, if it has not been restored, may be delivered in the condition it is at the date of these orders) referred to in paragraph 1 of Mr Brennan’s affidavit sworn 7 February 2011 and thereupon such items shall be the proper to Ms McGuire.

6. Mr Brennan pay 50% of Ms McGuire’s costs of the proceedings as taxed.

7. Upon compliance with these orders all personal property in the possession, custody and control of Mr Brennan and Ms McGuire respectively shall vest in interest and possession in him and her respectively.

8. Upon compliance with these orders by the parties, neither will have any right against, or liability to, the other in respect of the fund, the company or any interest in any real or personal property for which he or she would have been entitled to make a claim in these proceedings.

Note:

Background

Background to the litigation

Full text does not contain this section.

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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Citation:		Brennan v McGuire [2011] FCA 148
Parties:		ROBERT GEORGE BRENNAN v GLENYS FREYA MCGUIRE
File number:		NSD 1147 of 2010
Judge:		RARES J
Date of judgment:		17 February 2011
Date of hearing:	17 February 2011
Place:	Canberra
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	14
Solicitor for the Applicant:	M Reid of Phelps Reid
Counsel for the Respondent:	The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NSD 1147 of 2010

BETWEEN:	ROBERT GEORGE BRENNAN Applicant
AND:	GLENYS FREYA MCGUIRE Respondent

JUDGE:	RARES J
DATE OF ORDER:	24 FEBRUARY 2011
WHERE MADE:	CANBERRA