FAMILY COURT OF AUSTRALIA
| BROWN & MURDOCH (NO. 3) | [2014] FamCA 1005 |
| FAMILY LAW – PROPERTY SETTLEMENT – Deceased husband – Section 79(8) conceded by all parties – Other claimants against the estate – Criticism by wife of the role of the executors – Criticism rejected – Infants’ compromise considered and ordered. |
| Administration and Probate Act 1958 (Vic) Family Law Act 1975 (Cth) |
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| Bonnici and Bonnici (1992) FLC 92-272 Coghlan and Coghlan (2005) FLC 93-220 Dickons & Dickons [2012] FamCAFC 154 Dimos v Skaftouros and Ors (2004) 9 VR 584 Fisher v Martin [2008] NSWSC 1357 Gillespie v Alperstein [1964] VR 749 Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381 Lovine and Connor and Anor (2012) FLC 93-515 Mallet v Mallet (1984) 156 CLR 605 Mason v Hannaford; Mason-King (Intervener) (1993) FLC 92-398 Mason v Mason c/o Hannaford; Mason-King (Intervener) (1994) FLC 92-446 Miller v Cameron (1936) 54 CLR 572 Monty Financial Services Limited v Delmo [1996] 1 VR 65 Norbis v Norbis (1986) 161 CLR 513 Pierce and Pierce (1999) FLC 92-844 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown |
| RESPONDENT: | Ms Murdoch |
| FILE NUMBER: | MLC | 9886 | of | 2010 |
| DATE DELIVERED: | 14 November 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 5, 6, 10, 11, 12, 13, 16, 17 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Davis |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Testart |
| SOLICITOR FOR THE RESPONDENT: | Schetzer Constantinou |
Orders
That if by 4 pm on 12 January 2015, G Pty Ltd has not distributed to the wife (and/or the wife on trust for the children of the husband and wife) the proceeds of the Brown Superannuation Fund (and in particular the motor registration plates), this matter may be relisted on a date to be fixed before the Honourable Justice Cronin for submissions and evidence as to what should happen to the interests (if any) of the husband and the wife in that fund.
That by 4 pm on 12 December 2014, the wife may elect to purchase H Apartment, Surfers Paradise (the apartment).
If the wife elects to purchase the apartment, she shall have until 12 January 2015, to pay to the executors $1.137 million and upon the payment by that date of the said amount, the executors shall do all such things as may be required to transfer to the wife at her expense all of their interest and that of the husband in the apartment.
If the wife does not elect to purchase the apartment, the executors shall pay to her $263,000 by no later than 12 January 2015.
If the executors fail to pay the wife the sum of $263,000 by 12 January 2015:
(a) interest as calculated according to the Family Law Rules 2004, shall run from 12 January 2015; and
(b)the apartment shall thereafter…
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- AGLC
- Brown & Murdoch (No 3) [2014] FamCA 1005
- Case
- [2014] FamCA 1005
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of settlement and the final distribution of various assets, including a superannuation fund, an apartment, and other real properties. Key issues included the wife's entitlement to proceeds from the superannuation fund, the option to purchase a specific apartment, the distribution of estate funds to various creditors and individuals, and the establishment of children's trusts. The court also addressed the removal of caveats and the provision of personal effects and documents.
Cronin J applied principles of family law and estate administration to resolve the competing claims. The court's reasoning focused on achieving a final and comprehensive settlement of the parties' interests. This involved setting clear deadlines for actions such as the distribution of superannuation proceeds, the wife's election to purchase the apartment, and the payment of funds. The court also ordered the discharge of certain injunctive orders and the removal of caveats to facilitate the administration of the estate.
The court made detailed orders regarding the distribution of assets. If the wife did not purchase the apartment, the executors were to pay her a specified sum by a certain date, with interest accruing if payment was delayed, and the apartment would then be sold. The proceeds of any sale were to be applied first to sale costs, then to discharge encumbrances, then to the wife's entitlement, and finally the balance to the executors. The court also ordered specific payments to named individuals and entities, and the balance of estate funds were to be paid to the wife as trustee for the children. The compromise relating to the children's interest in a particular property was approved.
Orders
Orders of the court
1.
That if by 4 pm on 12 January 2015, G Pty Ltd has not distributed to the wife (and/or the wife on trust for the children of the husband and wife) the proceeds of the Brown Superannuation Fund (and in particular the motor registration plates), this matter may be relisted on a date to be fixed before the Honourable Justice Cronin for submissions and evidence as to what should happen to the interests (if any) of the husband and the wife in that fund.
2.
That by 4 pm on 12 December 2014, the wife may elect to purchase H Apartment, Surfers Paradise (the apartment).
3.
If the wife elects to purchase the apartment, she shall have until 12 January 2015, to pay to the executors $1.137 million and upon the payment by that date of the said amount, the executors shall do all such things as may be required to transfer to the wife at her expense all of their interest and that of the husband in the apartment.
4.
If the wife does not elect to purchase the apartment, the executors shall pay to her $263,000 by no later than 12 January 2015.
5.
If the executors fail to pay the wife the sum of $263,000 by 12 January 2015:
(a) interest as calculated according to the Family Law Rules 2004, shall run from 12 January 2015; and
(b) the apartment shall thereafter be sold on such terms and conditions as may be agreed and, failing agreement, as ordered by the Court.
6.
That the parties have liberty to apply in respect of the terms and conditions of the sale of the apartment.
7.
Upon the settlement of the sale of the apartment, the proceeds shall be applied as follows:
(a) first, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge any encumbrance affecting the apartment;
(c) thirdly, to pay to the wife $263,000 together with interest as calculated under the Family Law Rules 2004 from 12 January 2015 until the payment; and
(d) fourthly, the balance be paid to the executors.
8.
That paragraph 1 of the orders made 5 June 2014 (the injunctive order) is forthwith discharged.
9.
That paragraph 1 of the minutes annexed to the orders made on 4 June 2013 is forthwith discharged.
10.
That to the extent that any caveat lodged by the Executors of the Estate of the Late Mr Brown has not been removed over any of the following real properties:
· S Street, Suburb T;
· B Street, Suburb T; and
· P Street, Suburb M
it be so removed forthwith at the expense of the Estate.
11.
That by 4 pm on 12 December 2014, the Executors make available for collection by the wife all of her personal files and photographs of the wife and the children which are currently in the possession or control of the Executors.
12.
That to the extent that documents have not been executed by the Executors to establish the children’s trusts referred to in the will of the husband, they be so executed and provided to the wife by 4 pm on 12 December 2014.
13.
That without prejudice to the obligations of the executors to otherwise administer the Estate according to law, from the funds held in the Estate after payment of the sum due the wife under paragraph 4 of these orders, the executors distribute the Estate funds as follows:
(a) Mr Gould $90,000
(b) Mr Savva $36,000
(c) Schetzer Constantinou $172,000
(d) Firm Q $161,025 together with fees until the winding up of the estate at the rate of $550 per hour capped at a further $20,000
(e) The creditors and other persons entitled to payments under the Estate referred to in the reasons for judgment this day.
14.
That upon doing all things as may be required to complete the administration of the estate, the executors pay the balance of funds to the wife as trustee for the children Y and J.
15.
That the compromise relating to the interest of the said children in the real property at Suburb A referred to in the reasons for judgment this day is approved by the Court.
16.
That any application for costs arising out these orders shall be by written submission filed and served by no later than 4 pm on 12 January 2015 and any such determination shall be made in chambers.
17.
That save as to the matters referred to in paragraphs 1 and 16, all applications are otherwise dismissed.
18.
It is certified that the briefing of counsel was appropriate in the circumstances.
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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