Cabbell and Cabbell (No.2) - [2008] FMCAfam 1225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CABBELL & CABBELL (No.2)

[2008] FMCAfam 1225

FAMILY LAW – Property – matter re-opened – parties permitted to file submissions in relation to anticipated variation in the pool of assets.

Cabbell (2008) FMCAfam 1103

Applicant:

MS CABBELL

Respondent:

MR CABBELL

File number:

BRC 4985 of 2007

Judgment of:

Baumann FM

Hearing date:

31 October 2008

Date of last submission:

31 October 2008

Delivered at:

Parramatta

Delivered on:

12 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr Kirk

Solicitors for the Applicant:

Berck & Associates

Counsel for the Respondent:

Mr North

Solicitors for the Respondent:

Habermann & Associates

ORDERS

ORDERS Within 30 days of the date of this Order the Husband will do all such acts and things as may be necessary to secure the consent (“the consent to transfer”) of the shareholder of [W] Pty Ltd (“[W]”) as trustee for the [M] Family Trust (“M”) to transfer to the Wife all its right, title and interest in the following property:
(i)The former matrimonial home at Property W, Queensland and described as [omitted] and being the whole of the land in Title Reference [1];
(ii)Property T, Queensland and described as [omitted] and being the whole of the land in Title Reference [5] together with the contents.
Within 28 days of receipt of the transfer which may be submitted at any time after the time period prescribed in Order 1, the Husband, shall cause [W] to execute a transfer in registrable form to the Wife of all the right, title and interest of [W] in all the land described in Order 1. The Husband shall execute the transfer as director within 3 days of receipt of same and shall use his best reasonable endeavours to have same executed by the second director within 28 days of receipt. If the second director is unable (due to absence from Australia or otherwise) to execute the said transfer within 28 days, then the Husband shall advise the Wife who shall then have liberty to apply to the Court for an order directing a Registrar to sign under Order 17.
In exchange for the executed transfers referred to in Order 2, the Wife shall provide to the Husband a withdrawal in registrable form of the caveat over each piece of land referred to in Order 1, and, in addition thereto the following property:
(i)Property P, Queensland and described [omitted] and being the whole of land in Title Reference [0];
(ii)Property S, Queensland and described [omitted] and being the whole of the land in Title Reference [6];
(iii)Unit 2, Property Y, New South Wales and described in Certificate of Title Register as [omitted] (the Wife shall also provide a registrable transfer of this property to the Husband);
(iv)Unit 3 Property Y, New South Wales and described in Certificate of Title Register as [omitted];
(v)Unit 4, Property Y, New South Wales and described in Certificate of Title Register as [omitted].
In giving effect to Orders 1, 2 and 3, the party receiving the…

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 Cabbell and Cabbell (No.2)

Details

AGLC: Cabbell and Cabbell (No.2) [2008] FMCAfam 1225
Case: [2008] FMCAfam 1225
Decision Date: 12 November 2008

CaseChat Overview and Summary

The case of Cabbell and Cabbell (No.2) was heard by the Family Court of Australia, where the parties were engaged in a dispute regarding the division of their assets following a divorce. The central issues involved the equitable distribution of property, including real estate, shares, and superannuation benefits, as well as the management and transfer of these assets. The court had to determine the specific steps required for the transfer of property and assets between the parties, ensuring that the division was fair and adhered to relevant legal standards.

The legal issues before the court included the necessity for the husband to obtain the consent of a shareholder to transfer property held by a company, the execution of necessary documents to effect the transfer, and the equitable distribution of superannuation benefits. Additionally, the court had to address the procedural requirements for the division of assets, ensuring that both parties understood their obligations and the timelines involved in the process.

The court ruled that the husband must secure the necessary consent to transfer specific properties to the wife, execute the transfers within specified timeframes, and provide the wife with a withdrawal of caveats over certain properties. The court also mandated the division of shares and superannuation benefits, outlining specific shares to be transferred to the wife and the calculation for her entitlement to a portion of the husband's superannuation fund. The orders included provisions for the payment of specific amounts, indemnification against liabilities, and restrictions on the husband’s actions regarding the wife’s involvement in certain trusts. Furthermore, the court emphasised the importance of compliance with these orders and set out consequences for non-compliance, including the appointment of a registrar to enforce the orders.

In summary, the court's orders detailed a comprehensive plan for the division of assets, ensuring that both parties understood their responsibilities and the steps required to finalise the property and asset transfers. The orders also addressed the equitable distribution of superannuation benefits, providing clear guidelines for the division and transfer of these benefits.

Orders

Orders of the court

ORDERS Within 30 days of the date of this Order the Husband will do all such acts and things as may be necessary to secure the consent (“the consent to transfer”) of the shareholder of [W] Pty Ltd (“[W]”) as trustee for the [M] Family Trust (“M”) to transfer to the Wife all its right, title and interest in the following property:

(i) The former matrimonial home at Property W, Queensland and described as [omitted] and being the whole of the land in Title Reference [1];

(ii) Property T, Queensland and described as [omitted] and being the whole of the land in Title Reference [5] together with the contents.

Within 28 days of receipt of the transfer which may be submitted at any time after the time period prescribed in Order 1, the Husband, shall cause [W] to execute a transfer in registrable form to the Wife of all the right, title and interest of [W] in all the land described in Order 1. The Husband shall execute the transfer as director within 3 days of receipt of same and shall use his best reasonable endeavours to have same executed by the second director within 28 days of receipt. If the second director is unable (due to absence from Australia or otherwise) to execute the said transfer within 28 days, then the Husband shall advise the Wife who shall then have liberty to apply to the Court for an order directing a Registrar to sign under Order 17.

In exchange for the executed transfers referred to in Order 2, the Wife shall provide to the Husband a withdrawal in registrable form of the caveat over each piece of land referred to in Order 1, and, in addition thereto the following property:

(i) Property P, Queensland and described [omitted] and being the whole of land in Title Reference [0];

(ii) Property S, Queensland and described [omitted] and being the whole of the land in Title Reference [6];

(iii) Unit 2, Property Y, New South Wales and described in Certificate of Title Register as [omitted] (the Wife shall also provide a registrable transfer of this property to the Husband);

(iv) Unit 3 Property Y, New South Wales and described in Certificate of Title Register as [omitted];

(v) Unit 4, Property Y, New South Wales and described in Certificate of Title Register as [omitted].

In giving effect to Orders 1, 2 and 3, the party receiving the benefit of an Order shall be responsible, at his or her own cost as the case may be, of promptly submitting the relevant transfer or withdrawal of caveat to the other party for execution.

Contemporaneously with the exchanges of transfers and withdrawals referred to in Orders 1, 2 and 3, the Wife shall notify the Trustee of Australian Super, member number [omitted], of the making of these Orders and shall thereafter promptly do all such acts and things and execute such documents as may be required by the Trustee to lift Order 6 of the Orders made on 12th June 2007 pursuant to section 90MU of the Family Law Act 1975.

Except as otherwise provided in these Orders, the Wife shall be, and is hereby declared to be the sole legal and beneficial owner to the exclusion of the Husband of all real and personal property in her ownership and possession or under her control as at the date of the making of these Orders, including, but not limited to:

(iii) Her QSuper defined benefit account, client number [omitted];

(iv) Her QSuper accumulation account, client number [omitted];

(v) Her Unisuper account, member number [omitted];

(vi) Jewellery;

(vii) Suncorp margin loan in her name, client reference number [omitted], and subject to the margin loan;

(viii) Furniture in the former matrimonial home at Property W, Queensland, except where specified in this Order as being the property of the Husband.

The Husband shall within 30 days from the date hereof cause [W] Pty Ltd to place on the market for sale at market value after taking advice from a real estate agent carrying on business in the area of the land, Unit 3 and Unit 4 Property Y, New South Wales by private treaty and one half of the full net proceeds of such sale after allowing for reasonable agents fees, advertising and any capital gains and other taxes and outgoings, tax and other reasonable costs and expenses of and incidental to effecting a sale shall be paid to the Wife and the other half of the full net proceeds paid to the Husband. The Husband undertakes to keep the Wife and/or her lawyers informed as to all such steps taken to sell the said units and the progress of same. The Wife undertakes to join in and do all things reasonable, necessary and incidental to effect a sale of the real property referred to in this Order 7, and all reasonable costs fees outgoings and charges necessary and incidental to effecting a sale and maintenance of the properties referred to in this Order 7 not reasonably capable of being deducted from the net proceeds of the sale of each of the properties shall be met within

30 days of incurrence of same by each of them the Husband and Wife equally as from the date of this Order the Husband shall cause the Wife to be notified of any expenditure greater than $500 likely or necessary before the liability is incurred. As from the date of this Order the net income from the units referred to in this Order 7 after allowing for all reasonable outgoings and without limiting the generality of the foregoing including al the upkeep maintenance repair costs and charges levied on the units including those of a prospective nature adjusted as from the date of this Order shall be shared equally by [W] Pty Ltd and the Wife.

That contemporaneous with the wife’s compliance with the provisions of paragraph 3 hereof, the husband shall transfer to the wife the following specified shares that are held his Suncorp Share Portfolio, client reference number [omitted] so as to provide the wife with one half of the value of his Suncorp share portfolio net of any margin loan as at close of business on 23 October 2008:

(a) 926 AGL Energy Ltd shares: security code [omitted];

(b) 691 AMP shares: security code [omitted];

(d) 161 APA Group shares: security code [omitted];

(e) 403 Babcock & Brown Infrastructure Group shares; security code [omitted];

(f) 358 Babcock & Brown Power shares: security code [omitted];

(g) 139 Babcock & Brown Wind Partners GRP: security code [omitted];

(h) 2,839 Bendigo and Adelaide Bank Ltd shares: security code [omitted];

(i) 856 BBI EPS Ltd shares: security code [omitted];

(j) 1,785 BHP Biliton shares: security code [omitted];

(k) 357 Bluescope Steel Ltd shares: security code [omitted];

(l) 794 Commonwealth Bank of Australia shares: security code [omitted];

(m) 5,009 Clough Ltd shares: security code [omitted];

(n) 12,183 CSR Ltd shares: security code [omitted];

(o) 3,542 David Jones Ltd shares: security code [omitted];

(p) 11,156 Futurus Corporation Ltd shares: security code [omitted];

(q) 139 Henderson Group Plc shares: security code [omitted];

(r) 12,833 Over Fifty Group Ltd shares: security code [omitted];

(s) 921 St George Bank Ltd shares: security code [omitted];

(t) 939 Sims Group Ltd: security code [omitted];

(u) 3,570 Santos Ltd shares: security code [omitted];

(v) 67 Santos Ltd – Non Cum Conv (FUELS): security [omitted];

(w) 2,721 Suncorp Metway Ltd: security code [omitted];

(x) 1,964 Tabcorp Holdings Ltd shares: security code [omitted];

(y) 4,552 Telstra Corporation Ltd: security code [omitted];

(z) 2,008 West Australian Newspapers Holdings: security code [omitted];

(aa) 602 Wesfarmers Ltd: security code [omitted];

(bb) 781 Woolworths Ltd shares: security code [omitted].

That contemporaneous with the wife’s compliance with the provisions of paragraph 3 hereof, the husband shall provide to the wife the Capital Gains Tax Register for all of the shares held by him in the Suncorp Share Portfolio client reference number [omitted].

10.

The husband indemnify and keep the wife indemnified with respect to any liability including taxation liabilities and loan accounts arising out of her involvement in the [M] Family Trust, [P] Trust and [T] Trust.

11.

The husband shall not, without first obtaining the written consent of the wife, cause the distribution to the wife of any income earned by the [M] Family Trust (or any other trust in which she may be a beneficiary).

12.

The husband shall not, without first obtaining the written consent of the wife, include the wife as a beneficiary of any further Trust or Trusts he may settle or cause to be settled in the future.

13.

That except as otherwise provided for in the Orders made, the husband be and is hereby declared to be sole legal and beneficial owner, to the exclusion of the wife, of all real and personal property in his ownership and possession or under his control as at the date of the making of these Orders, including, but not limited to:

(a) Property P;

(b) Saab Motor Vehicle.

(d) Suncorp Account [1].

(e) Suncorp Account [4].

(f) The balance of the shares in his Share Portfolio with client reference number [omitted], subject to the Suncorp margin loan, after the transfers of shares to the wife are completed as provided for in Order 8 of these Orders.

(g) His home contents.

(h) 200 Caltex shares.

(i) Australian Super member [omitted].

(j) His tax refund.

14.

[W] Pty Ltd atf [M] Family Trust

Save as otherwise provided herein, the husband retain his interest in the assets of the company and/or trust, and the wife relinquish any claim thereto, with such interests including, but not limited to:

(a) Unit 4, Property Y

(b) Unit 3, Property Y

(d) Suncorp-Metway Limited, A/C No[7]

(e) Cash Management Account No. [8]

(f) Wesfarmers Shares

(g) 2800 TLS Shares

(h) Lexus IS 250

(i) Other Fixed Assets of [W] Pty Ltd as identified in the valuation report of Pitcher Partners, dated 4 December 2007

15.

That the Husband shall pay to the Wife the sum of $76,187.00 within three business days of the date of this Order.

16.

That except as expressly provided for in these Orders, each party shall be solely liable for, and indemnifies the other party against, any liability incurred in their respective names, and, in particular, any liability encumbering any item of property to which the party is entitled pursuant to these Orders.

17.

That, pursuant to section 106A of the Family Law Act 1975, should either party refuse or neglect to do all such acts or things as may be necessary to give effect to these Orders within the time provided, a Registrar of the Federal Magistrates Court shall be appointed in the name of the party in default to do all such acts or things and to sign all such documents as may be necessary to give effect to these Orders, and the party in default shall pay, on a solicitor and own client basis, the costs of the other party incurred in remedying the default and enforcing or putting into effect these Orders.

18.

That except as is otherwise provided for in the Orders, both the husband and the wife shall each relinquish any claim, one against the other, to any interest in any other property not otherwise herein specifically referred to, including, but not limited to, superannuation, motor vehicles, bank or building society accounts, jewellery, furniture, appliances, debtors, choses in action and any other property, whether realty or personalty, wheresoever situated and/or of whatsoever kind presently in the possession, control of or registered in the name of the other party.

19.

That pursuant to section 90 MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the Australian Superannuation (member number [omitted]) (“the Husband’s superannuation fund”), then the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount, calculated at 44.83% thereof and there be a corresponding reduction in the entitlement that the husband would have had in his superannuation fund but for this Order.

20.

That this Order have effect from the operative time and the operative time is four (4) business days after the date of service of the Orders upon the Trustee of the husband’s superannuation fund.

21.

Upon being served with these Orders, and having been accorded procedural fairness in relation to the making of Order 19 above, the trustee of the husband’s superannuation fund is bound by the terms of this order.

22.

That the Trustee of the Husband’s superannuation fund shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in his fund.

23.

That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the Husband’s interest in his superannuation fund to a fund of the Wife’s choosing, in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

24.

Until the splittable payment is split in favour of the Wife, the Husband be and is restrained from requesting the Trustee, in accordance with reg.7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994, to rollover or transfer the transferable benefits to another superannuation fund.

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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