FAMILY COURT OF AUSTRALIA
| CAGNANI & STANKIC | [2017] FamCA 417 |
FAMILY LAW – PROPERTY – Application by husband for a property settlement – contributions – add-backs – Orders made for the division of property for both superannuation and non-superannuation on the basis of 60 per cent to the wife and 40 per cent to the husband
| Family Law Act 1975 (Cth) |
| Finlayson & Finlayson & Gillam [2002] FamCA 898 |
| APPLICANT: | Mr Cagnani |
| RESPONDENT: | Ms Stankic |
| FILE NUMBER: | SYC | 5204 | of | 2013 |
| DATE DELIVERED: | 15 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 8, 9, 10, 11 & 13 January, 23 February and 24 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Ms Ruggero of Vizone Ruggero Twigg Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Mr Williams and Ms Elliott of M&K Lawyers Group Pty Ltd |
Orders
The wife shall pay to the husband the sum of $228,146.00 contemporaneously with the transfer of the home referred to in Order 2.
Within sixty (60) days from the date of these Orders the husband shall do all things and sign all documents to transfer to the wife all of his interest in the property VV Street, Suburb J, New South Wales (‘the home’).
Contemporaneously with Order 2, the wife shall do all things and sign all documents necessary to refinance the Westpac Home loan secured by mortgage (‘the mortgage’) over the home and secure the release of the husband from his personal covenants in respect of the mortgage to that Bank over the home, and from that time the wife shall indemnity the husband in relation liabilities arising pursuant to the mortgage except as is otherwise provided in these orders.
The husband shall:-
a)vacate the home and deliver it up with vacant possession to the wife, or her nominee, within sixty (60) days from the date of these Orders;
b)be responsible for and pay council rates and water rates on the home up to the date sixty (60) days from the date of these Orders; if current rates are in arrears or paid in advance, they are to be adjusted on a pro-rata basis. Such adjustment to be by deduction from or addition to the sum payable by the wife to the husband pursuant Order 6 these Orders;
c)be responsible for the normal periodic payments of principle and interest on the mortgage up to the date sixty (60) days from the date of these Orders, and:-
i)if the balance due under the mortgage is less than $559,695 (the agreed ‘mortgage balance’) the wife shall pay to the husband the amount of that difference (at the same time as she pays the money pursuant to order 1 of these orders) being the sum by which actual balance is less than $559,695; or
ii)if the actual balance of the mortgage is greater than the mortgage balance, the wife may deduct that difference from the amount she would otherwise be…
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- Case
- [2017] FamCA 417
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific financial adjustments and property transfers between the parties. Key issues included the valuation and division of the home, the allocation of responsibility for the mortgage, the distribution of funds from an insurance claim arising from an explosion at the home, and the division of superannuation entitlements. The court also addressed the allocation of other real and personal property, as well as various debts and liabilities.
Benjamin J ordered that the wife pay the husband a sum of $228,146.00, contemporaneously with the transfer of the home to her. The husband was to transfer his interest in the home within sixty days, and the wife was to refinance the associated mortgage, releasing the husband from his personal covenants. The husband was to vacate the home within sixty days and was responsible for rates and mortgage payments up to that point, with adjustments to be made to the payment from the wife. The wife was to be entitled to vacant possession from sixty days after the orders. The court also detailed the distribution of proceeds from an insurance claim, with specific priorities for legal costs, a school debt, reimbursement for a quantity surveyor's report, and the remaining balance to be split 60% to the wife and 40% to the husband. The husband was entitled to a specific amount from the wife's superannuation. Other property and liabilities were allocated to each party, with mutual indemnities for debts in each other's names. All extant applications, other than for costs, were dismissed.
Orders
Orders of the court
1.
The wife shall pay to the husband the sum of $228,146.00 contemporaneously with the transfer of the home referred to in Order 2.
2.
Within sixty (60) days from the date of these Orders the husband shall do all things and sign all documents to transfer to the wife all of his interest in the property VV Street, Suburb J, New South Wales (‘the home’).
3.
Contemporaneously with Order 2, the wife shall do all things and sign all documents necessary to refinance the Westpac Home loan secured by mortgage (‘the mortgage’) over the home and secure the release of the husband from his personal covenants in respect of the mortgage to that Bank over the home, and from that time the wife shall indemnity the husband in relation liabilities arising pursuant to the mortgage except as is otherwise provided in these orders.
4.
The husband shall:-
a) vacate the home and deliver it up with vacant possession to the wife, or her nominee, within sixty (60) days from the date of these Orders;
b) be responsible for and pay council rates and water rates on the home up to the date sixty (60) days from the date of these Orders; if current rates are in arrears or paid in advance, they are to be adjusted on a pro-rata basis. Such adjustment to be by deduction from or addition to the sum payable by the wife to the husband pursuant Order 6 these Orders;
c) be responsible for the normal periodic payments of principle and interest on the mortgage up to the date sixty (60) days from the date of these Orders, and:-
i) if the balance due under the mortgage is less than $559,695 (the agreed ‘mortgage balance’) the wife shall pay to the husband the amount of that difference (at the same time as she pays the money pursuant to order 1 of these orders) being the sum by which actual balance is less than $559,695; or
ii) if the actual balance of the mortgage is greater than the mortgage balance, the wife may deduct that difference from the amount she would otherwise be required to pay the husband pursuant to Order 1 of these Orders.
5.
The wife shall:-
a) be entitled to vacant possession of the home as and from sixty (60) days from the date of these Orders; and
b) be responsible for and pay council rates and water rates as and from sixty (60) days of the date of these Orders.
6.
In the event that the wife is unable or unwilling to comply with the orders regarding the transfer of the property then each party is given leave to apply for orders for extension of time or for sale of the property, provided the application for such mechanical orders pursuant to this leave is filed within one hundred and twenty (120) days of the date of this order. If he is reasonably available this application to be listed before Benjamin J.
7.
If the wife is unable to comply with this order to enable the transfer of the home pursuant to these orders; interest in accordance with the Family Law Rules 2004 (Cth) shall apply from the later of sixty (60) days from the date of these orders or completion of the sale of the home.
8.
The wife shall keep the husband informed of all negotiations, correspondence and settlements between her (and/or her solicitors) and the Insurance Australia Limited trading as NRMA Insurance (‘NRMA’) as to the resolution of a claim arising out of the explosion at the home in 2013 (‘the claim’).
9.
Upon resolution of the claim and within twenty eight (28) days of the payment to her or her solicitor of the proceeds of the claim, the wife shall cause the such proceeds to be paid in the following priority:-
a) payment of fair and reasonable practitioner legal costs and disbursements in respect of the legal practitioner/s acting for the wife on the claim (and in that respect the husband is a third party payer pursuant to s 171 of the Legal Profession Uniform Law (NSW));
b) payment of $57,883 to the YY School plus any additional interest, fees and charges that have lawfully arisen since 3 August 2016; including the fees and charges incurred by the parties’ children attending at that school in 2016;
c) in reimbursement to the husband of $4,950 paid by him to Mr UU, Quantity Surveyor, for the preparation of his report dated 15 September 2016; and
d) the nett balance it is to be paid as to 60 per cent to the wife and 40 per cent to the husband.
10.
If in the context of resolution of the claim against the NRMA:-
a) that insurer requests that the wife indemnify it against any possible claims by the husband; and
b) the wife provides the insurer with such indemnity and complies with order 9 of these orders;
then the husband shall indemnify the wife against any such claims made by him or on his behalf.
11.
In accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth) (‘the Act’), whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of the wife from her interest in the Public Sector Superannuation Scheme then the husband is entitled to be paid by the Trustees the amount of $107,680 giving a corresponding reduction in the entitlement of the wife as she would have had but for these Orders.
12.
The operative time the above order is twenty eight (28) business days after the service of the Final Orders on the Trustees of the Public Sector Superannuation Scheme.
13.
Liberty is reserved to the said Trustees and the parties to apply to this Court about the Orders made or the form thereof within the period of twenty eight (28) days after service of a copy of these Orders on the Trustees.
14.
Subject to these orders and as against the husband the wife be solely entitled to the exclusion of the husband to all other property both real and personal in her ownership, possession and control, including but not limited to:-
a) all monies in financial institutions in her name;
b) all motor vehicles in her name;
c) furniture, jewellery and personal effects; and
d) all remaining superannuation entitlements held by her.
15.
Subject to these orders and as against the wife the husband be solely entitled to the exclusion of the wife to all other property both real and personal in his ownership, possession and control, including but not limited to:-
a) all monies in financial institutions in his name;
b) all motor vehicles in his name, including the scooter, Classic car;
c) furniture and personal effects; and
d) all other superannuation entitlements held by him.
16.
That the wife shall indemnify and keep indemnified the husband in relation to all liabilities and debts in her name, including but not limited to any credit card liabilities, loans from family members, and income tax liabilities.
17.
That the husband shall indemnify and keep indemnified the wife in relation to all liabilities and debts in his name, including but not limited to any credit card liabilities, motor vehicle liabilities and income tax liabilities.
18.
Other than any applications for costs, all extant applications (including Child Support Applications) are dismissed.
19.
Any application for costs will be made in accordance with the Family Law Rules 2004 (Cth).
20.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
21.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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