Bush and Bush and Anor - [2009] FMCAfam 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUSH & BUSH & ANOR

[2009] FMCAfam 457

FAMILY LAW – Property – undefended proceedings – non-disclosure – just and equitable.

Family Law Act 1975, ss.75(2), 79

A & Z [2006] FamCA 179
Bush & Bush [2008] FMCA Fam 1167
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1998) FLC 92-844
Weir (1993) FLC 92-338
Williams & Williams [2007] FamCA 313

Applicant:

MS BUSH

First Respondent:

MR BUSH

Second Respondent:

[A] PTY LTD

Intervenor:

[I] PTY LTD

File Number:

SYC 7462 of 2007

Judgment of:

Altobelli FM

Hearing date:

19 February 2009

Date of Last Submission:

1 May 2009

Delivered at:

Sydney

Delivered on:

22 May 2009

REPRESENTATION

Solicitor-Advocate for the Applicant:

Mr Younan

Solicitor for the Applicant:

Equity Lawyers

First Respondent:

No Appearance

The Second Respondent:

No Appearance

Solicitor-Advocate for the Intervenor:

Mr Wahab

Solicitors for the Intervenor:

York Family Lawyers

ORDERS

The First Respondent forthwith vacate the Property R property (Property RProperty R) and that he thereafter remain away therefrom and grant to the Applicant Wife the quiet use and enjoyment thereof.
That the Second Respondent forthwith vacate the Property R property and thereafter remain away therefrom and that he grant the Applicant Wife the quiet use and enjoyment thereof.
That the Second Respondent forthwith transfer to the First Respondent the property situate at and known as Property RProperty R, for on-transfer to the Wife, and:
(a)the Court notes that the Second Respondent is a party to these proceedings;
(b)this order is binding on all parties including the Second Respondent.
Simultaneously with his receipt of transfer of the Property R property from the Second Respondent, the First Respondent transfer to the Applicant Wife the whole of his right, title and interest in the Property R property subject to the existing mortgage.
The First respondent forthwith do all acts and things and sign all such documents as are necessary so as to cause the Second Respondent to transfer to the Applicant Wife all its right, title and interest in the Holden Commodore motor vehicle registration number [Y].
The Applicant Wife retain the furniture, furnishings and personal belongings in her possession.
THAT in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein the Registrar of the Court be appointed pursuant to section 106A to execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.
Within 28 days of the orders, the First Respondent pay to the Applicant Wife a sum of $40,000.00.
I DIRECT the Solicitor for the Applicant to within 7 days notify in writing the first and second Respondents of the orders made today.
Leave is granted to the first and second Respondents to make an application…

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.

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Details

Case: [2009] FMCAfam 457
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Bush and Bush and Anor was heard, where the Applicant, referred to as the Wife, sought relief from the First and Second Respondents, who are the husband and another party, respectively. The Wife sought an order for the First Respondent to vacate and transfer certain properties to her, as well as a Holden Commodore motor vehicle, and to pay a sum of money. She also sought for the Second Respondent to vacate a property and transfer it to the First Respondent for on-transfer to her. Additionally, the Wife wanted to retain certain furniture, furnishings, and personal belongings in her possession. The court addressed these legal issues, including whether the Wife was entitled to the properties and vehicle, and whether the Respondents were required to vacate the premises and transfer the assets to the Wife.

The court considered the evidence and arguments presented by both parties and found that the Wife was entitled to the relief sought. The First Respondent was ordered to vacate and transfer Property R to the Second Respondent, who was then required to transfer it to the Wife. The Second Respondent was also ordered to transfer the Holden Commodore motor vehicle to the First Respondent, who was to transfer it to the Wife. The Wife was granted the right to retain the furniture, furnishings, and personal belongings in her possession. Furthermore, the First Respondent was ordered to pay the Wife a sum of $40,000.00. The court also made provisions for the appointment of the Registrar of the Court to execute necessary deeds and documents if either party failed to do so.

In conclusion, the court granted the Wife's application and issued orders for the First and Second Respondents to vacate the properties and transfer the assets to the Wife. The court also ordered the First Respondent to pay the Wife a sum of money. The orders were stayed for 14 days to allow the intervenor and the Wife to consider the orders and reasons, and to enable the intervenor to make any further application. The matter was adjourned for a mention on 16 June 2009 at 9.30am, and the Wife was granted liberty to restore the matter before the court within 12 months of the orders for specific orders.

Orders

Orders of the court

The First Respondent forthwith vacate the Property R property (Property RProperty R) and that he thereafter remain away therefrom and grant to the Applicant Wife the quiet use and enjoyment thereof.

That the Second Respondent forthwith vacate the Property R property and thereafter remain away therefrom and that he grant the Applicant Wife the quiet use and enjoyment thereof.

That the Second Respondent forthwith transfer to the First Respondent the property situate at and known as Property RProperty R, for on-transfer to the Wife, and:

(a) the Court notes that the Second Respondent is a party to these proceedings;

(b) this order is binding on all parties including the Second Respondent.

Simultaneously with his receipt of transfer of the Property R property from the Second Respondent, the First Respondent transfer to the Applicant Wife the whole of his right, title and interest in the Property R property subject to the existing mortgage.

The First respondent forthwith do all acts and things and sign all such documents as are necessary so as to cause the Second Respondent to transfer to the Applicant Wife all its right, title and interest in the Holden Commodore motor vehicle registration number [Y].

The Applicant Wife retain the furniture, furnishings and personal belongings in her possession.

THAT in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein the Registrar of the Court be appointed pursuant to section 106A to execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.

Within 28 days of the orders, the First Respondent pay to the Applicant Wife a sum of $40,000.00.

I DIRECT the Solicitor for the Applicant to within 7 days notify in writing the first and second Respondents of the orders made today.

10.

Leave is granted to the first and second Respondents to make an application before Federal Magistrate Altobelli to stay, vary or set aside these orders within 28 days, such application to be by way of an application in a case with a supporting affidavit.

11.

The orders made today are stayed for 14 days in order to enable the intervenor [I] Ltd and the applicant wife to consider these orders and reasons and to enable the intervenor to make any further application.

12.

The matter be adjourned to 16 June 2009 at 9.30am for mention.

13.

The wife have liberty to restore this matter before me on 14 days notice in relation to orders 11 and 14 of her further amended application filed 20 March 2009, provided such re-listing occurs within 12 months of these orders.

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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