FAMILY COURT OF AUSTRALIA
| BULLEEN & BULLEEN (NO. 3) | [2010] FamCA 859 |
| FAMILY LAW – PROPERTY SETTLEMENT – After a finding as to appropriate percentages on a final hearing but before overall final orders were made, could and should final orders relating to specific property be reconsidered and a different methodology for division be employed? Where neither party had proposed a methodology for division of specific assets, was a party denied procedural fairness? Court declined to alter its orders. Where a pool has been agreed and determination made upon it, for the purposes of the ultimate percentage division of the pool, should the real properties be revalued? Is the introduction of new valuation evidence a re-opening of the case? Fresh evidence refused on the basis that it was such a re-opening. Should a court being concerned about allowing parties to maximise the asset pool by legitimate tax minimisation by the joinder of their corporate entity where that entity had not been a party throughout the trial but in circumstances where it is common ground that both parties control the corporate entity absolutely? As the entity was the owner of significant property, it could and should be treated as a legal person and joined as a party to the proceedings |
| Family Law Act 1975 (Cth) Income Tax Assessment Act 1997 (Cth) |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 DJL v Central Authority [2000] HCA 17; 201 CLR 226 Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280 Gelley and Gelley (1992) FLC 92-290 KPR & MRS [2007] FamCA 1334 Lamrock & Lamrock [2008] FamCAFC 79 McDonald and McDonald (1976) FLC 90-047 Molier and Van Wyk (1980) FLC 90-911 Ravasini & Ravasini (1983) FLC 93-312 Re Commissioner of Tax v Rabinov [1983] FCA 143 Sirius Shipping Corporation v The Ship “Sunrise” & Ors [2007] NSWSC 766 Slapp & Slapp (1989) FLC 92-022 Smith v New South Wales Bar Association [1992] HCA 36 State of Queensland v JL Holdings Pty Ltd [1997] HCA1 Suell and Suell (Reopening) [2009] FamCA 55 |
| APPLICANT: | Ms Bulleen |
| RESPONDENT: | Mr Bulleen |
| FILE NUMBER: | MLC | 12431 | of | 2007 |
| DATE DELIVERED: | 28 September 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 24 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR GEDDES QC WITH MR DICKSON |
| SOLICITOR FOR THE APPLICANT: | GILLIAN COOTE FAMILY LAW |
| COUNSEL FOR THE RESPONDENT: | MR KIRKHAM QC WITH MR STRUM |
| SOLICITOR FOR THE RESPONDENT: | GADENS LAWYERS |
Orders
That if by 4 pm on 8 October 2010, the husband has not advised the wife by email of his first selection of artist for the purposes of completing the requirements of paragraph 2 of the orders made 12 March 2010, the wife shall be entitled to have the first pick of the works of which artist she desires to retain.
That unless otherwise agreed to the contrary, after each party has made their first selection, their subsequent selections shall be made on an…
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- Case
- [2010] FamCA 859
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms for the division of a collection of artworks, including the process for selection and the consequences of failing to make selections within stipulated timelines. Further issues included the joinder of B Holdings Pty Ltd as a party to the proceedings, the distribution of funds from B Holdings to satisfy existing orders, and the final allocation of various properties, company directorships, shareholdings, and beneficial interests in trusts between the husband and wife. The court also addressed the wife's resignation from directorships and other roles within companies and trusts.
Justice Cronin applied principles of property division and the court's power to make orders to give effect to such divisions. The court detailed a specific alternating selection process for the artworks, with provisions for default if a party failed to make their selection. Orders were made for the joinder of B Holdings and for the husband and wife to take necessary steps to distribute funds from B Holdings. The court then clearly delineated which party would retain specific properties, including holiday homes, residential properties, and a farm, and specified the transfer of interests in a suite. Furthermore, the court ordered that the husband would retain the interests in K Nominees Pty Ltd, B Holdings Pty Ltd, and the Bulleen Investment Trust, as well as specific real estate properties. The wife was ordered to take steps to resign from directorships and transfer her shareholdings and entitlements in these entities to the husband.
Orders
Orders of the court
1.
That if by 4 pm on 8 October 2010, the husband has not advised the wife by email of his first selection of artist for the purposes of completing the requirements of paragraph 2 of the orders made 12 March 2010, the wife shall be entitled to have the first pick of the works of which artist she desires to retain.
2.
That unless otherwise agreed to the contrary, after each party has made their first selection, their subsequent selections shall be made on an alternating basis by email on successive days until the completion of the process.
3.
That if a party fails to make a daily selection as set out, the other party shall be entitled to presume that no further selection is to be made and make a decision as to what artworks are to be retained by them and what is to be sold.
4.
That upon completion of the division of the artwork, the relevant pieces shall be collected by agreement and failing agreement, collected by the party entitled to the artwork at their own expense upon 7 days written notice.
5.
That to the extent that any artwork remains unselected by the processes set out in these orders, it shall be sold as soon as practicable and the net proceeds shall be divided according to the orders made on 12 March 2010.
6.
That B Holdings Pty Ltd (B Holdings) be joined as a party to the proceedings.
7.
That the wife serve upon B Holdings, a copy of these orders and the reasons for judgment this day. That such service occur by ordinary post addressed to the registered office of B Holdings.
8.
That B Holdings have 7 days from the date of service upon it of these orders to file and serve any application to set aside the orders.
9.
That to give effect to paragraph 3 of the orders made 12 March 2010, each of the husband and the wife forthwith do all things necessary and sign any required document to distribute such funds of B Holdings as may be necessary to satisfy the order or as much of it as can be so satisfied.
10.
That the husband forthwith transfer to the wife at her expense, all of his interest in the holiday home property.
11.
That the wife forthwith retain and the husband relinquish any interest in, the M Street property.
12.
That the husband forthwith retain and the wife relinquish any interest in, the L Street property.
13.
That the wife forthwith transfer to the husband at his expense, all of her interest in the suite in O Street.
14.
That the husband forthwith retain and the wife relinquish any interest in, the farm property.
15.
That save as otherwise provided in these orders, the husband retain and the wife relinquish any interest in:
a) K Nominees Pty Ltd;
b) B Holdings Pty Ltd;
c) The Bulleen Investment Trust.
18.
That for the avoidance of doubt, the husband retain and the wife relinquish any interest in:
a) Q Street;
b) F Street;
c) C Street; and
d) B Street.
19.
That upon completion of the obligations under these orders, the wife do all acts and things and sign any required document at the expense of the husband to:
a) Resign as a director of the said companies;
b) Transfer to the husband or at his direction, any shareholding she may have in the said companies;
c) Consent to her removal as a beneficiary of the trust(s) referred to;
d) Resign from any office she may hold as appointor or guardian including any such office that may only take effect upon the death of the husband; and
e) Assign to the husband or at his direction, all claims and entitlements standing to her credit in any loan accounts in the said companies or trusts.
20.
That all extant applications be otherwise dismissed.
IT IS CERTIFIED:
21.
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
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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