Cai and Hsueh

[2016] FamCA 1081

FAMILY COURT OF AUSTRALIA

CAI & HSUEH [2016] FamCA 1081

FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the parties agree that the Financial Agreement is a binding financial agreement for the purposes of the Family Law Act – Whether the respondent has beneficial interest in a property under the terms of the Financial Agreement – Where there is no evidence as to the respondent’s taxable income over the subject periods or of any direct contribution to the ongoing mortgage liability on the property – Where the Court found on the evidence that the respondent is not entitled to a beneficial interest in the property – Whether a lump sum redundancy payment received by the applicant during cohabitation is a “lump sum compensation payment” as contemplated by the Financial Agreement – Where the Court found that the redundancy payment received by the applicant does not constitute a payment for the purposes of the Financial Agreement –Where it is appropriate that no orders be made as to the issue of Capital Gains Tax as provided for in the Financial Agreement

Family Law Act 1975 (Cth) ss 90C, 90KA

Addison v Cain (1932) 47 CLR 208
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
R v Regos (1947) 74 CLR 613
Subagio Lagaida Prabowo v Republic of Indonesia, the Attorney-General of the Commonwealth of Australia and Ronald Bruce Gentle [1995] FCA 1764

APPLICANT: Ms Cai

RESPONDENT: Mr Hsueh

FILE NUMBER: PAC 6235 of 2015

DATE DELIVERED: 19 December 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 November 2016

REPRESENTATION

APPLICANT: Self-Represented Litigant

COUNSEL FOR THE RESPONDENT: Mr Pickering

SOLICITOR FOR THE RESPONDENT: Australian United Lawyers

Orders

1. A Declaration that Ms Cai (“the wife”) does not hold a 50 per cent interest in the real estate property at B Street, Suburb C in trust for Mr Hsueh (“the husband”).

2. A Declaration that the voluntary redundancy payment received by the wife in March 2012 is not a payment  provided for in clause 1.1 (g) (ii) of the Financial Agreement between the parties dated 28 October 2006 being a payment by way of:

   gifts, inheritances or lump sum compensation payments and damages awards for personal injury.

3. That any application for costs be made by way of written submissions filed and served within 28 days from the date of these orders with any response thereto to be by way of written submissions filed and served within a further 14 days with judgment thereafter reserved to Chambers.

4. Otherwise all outstanding Applications and Responses are removed from the list of cases awaiting finalisation.

That by Consent

1. That pursuant to  clause 4.9(d) of the Financial Agreement between the parties dated 28 October 2006 the sum of $195,000 is payable by the husband to the wife.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cai & Hsueh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6235 of 2015

Ms Cai 

Applicant

And

Mr Hsueh

Respondent

REASONS FOR JUDGMENT

1. Section 90KA of the Family Law Act 1975 (Cth) (“the Act”) provides for the Court to determine the question whether a financial agreement or a termination agreement is valid, enforceable or effective in the following terms:

   The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

   (a)subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

   (b)has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and

   (c)in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

2. The subject of the present application is a Financial Agreement between the applicant wife and respondent husband dated 28 October 2006.

3. The parties are in agreement as to the quantum of certain adjustive funds to be paid by the husband to the wife under the terms of the Financial Agreement and such order will be made by consent.

4. Otherwise, the parties are at issue in relation to three matters:

   a)Whether the husband has beneficial interest in a property at B Street, Suburb C by reason of clause 3.4 of the Financial Agreement;

   b)Whether a lump sum redundancy payment received by the wife during cohabitation is a “lump sum compensation payment” as contemplated by clause 1.1(g)(ii) of the Financial Agreement and thus separate property for the purposes of the Financial Agreement; and

   c)What orders, if any, should be made as to the operation of clause 6.1 of the Financial Agreement as to prospective Capital Gains Tax liabilities that may accrue to the wife.

5. The Financial Agreement is a financial agreement for the purposes of s 90C of the Act that relevantly provides:

   (1)  If:

   (a)  the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

   (aa)  at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters; and

   (b)  the agreement is expressed to be made under this section;

   the agreement is a financial agreement. The parties to the marriage may make the financial agreement with one or more other people.

   (2)  The matters referred to in paragraph (1)(a) are the following:

   (a)  how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with;

   (b)  the maintenance of either of the spouse parties:

   (i)  during the marriage; or

   (ii)  after divorce; or

   (iii)  both during the marriage and after divorce.

   (2A)  For the avoidance of doubt, a financial agreement under this section may be made before or after the marriage has broken down.
   (3)  A financial agreement made as mentioned in subsection (1) may also contain:

   (a)  matters incidental or ancillary to those mentioned in subsection (2); and
   (b)  other matters.

   (4)  A financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

6. The parties agree that the Financial Agreement is a binding financial agreement for the purposes of the Act. On 19 July 2016 orders and notations were made as follows:

   BY CONSENT IT IS ORDERED THAT:

   1.The Financial Agreement dated 28 October 2006 between the parties is a binding financial agreement pursuant to s 90C of the Family Law Act 1975.

   IT IS NOTED THAT:

   A.The parties are in agreement that the adjustment payment as provided for and contemplated by clause 4.9 of the Binding Financial Agreement is in the sum of $195,000 payable by the Husband to the Wife.

   B.The issues for judicial determination arising out of the terms of the Binding Financial Agreement are as follows:

   a.Whether the Husband has a 50% beneficial interest in the property at [B Street, Suburb C] by reason of the provisions of clause 3.4 of the Binding Financial Agreement;

   b.Whether a lump sum employment redundancy payment received by the Wife during cohabitation is a payment by way of “lump sum compensation payments and damages award for personal injury” as contemplated by clause 1.1(g)(ii) of the Binding Financial Agreement so as to comprise separate property of the Wife; and

   c.What orders if any should be made in contemplation of any transfer or allocation of property pursuant to clause 6.1 of the Binding Financial Agreement particularly as to prospective Capital Gains Tax liabilities that may accrue to the Wife.

Context

1. The parties commenced a relationship in about 2003. They married in 2004 and commenced cohabitation on that day.

2. There are two children of the parties’ relationship D now aged nine and E now aged seven. The child E resides with the wife and the child D resides with the husband.

3. At the commencement of cohabitation the parties resided in a property owned by the wife at Suburb F in Sydney. The property was encumbered by way of mortgage. This property was purchased for $103,000 with the wife borrowing, by way of mortgage, $75,000. At the time of commencement of cohabitation the mortgage  had been reduced to about $48,000 with the wife also having funds in a CBA bank offset account of about $48,000 and funds in a Citibank account of about $11,000. The wife in May 2004 discharged the mortgage on the Suburb F property from her available funds.

4. In May 2004 the wife purchased the subject property at Suburb C. The purchase price of the property was funded by way of mortgage borrowing secured over the property. The purchase price of the property was $352,000. Subsequent to purchase the wife rented the property until such time as the husband commenced to occupy the property in February 2016.

5. The parties married three months later.

6. At the time of marriage the husband asserts he had $100,000 in savings.

7. Subsequent to marriage the parties maintained separate bank accounts. The wife attended to payment of mortgage and outgoings in respect to the Suburb F property and the husband transferred to her one thousand dollars a month to cover his living expenses.

8. In early 2006 the parties moved to larger rental premises at Suburb G.

9. In July 2006 the Suburb F property was sold. The property was sold for $107,000 with the net proceeds of sale being paid as to $54,000 to a term deposit offset account in relation to the Suburb C mortgage borrowing and as to the balance of about $41,000 to the wife’s CBA bank account.

10. On 28 October 2006 the parties entered into the subject Financial Agreement.

11. As at the date of the Financial Agreement the wife had the following assets:

    a)the Suburb C property having a value of about $370,000 subject to a  mortgage of about $350,000;

    b)superannuation entitlements of about $73,000;

    c)CBA term deposit offset account with  a balance of $54,000; and

    d)CBA offset MISA account with a balance of about $152,000.

12. In November 2006 the parties contracted to purchase a property at H Street, Suburb I in joint names. The purchase price of $643,000 was funded by way of mortgage borrowing of $472,150. The balance of purchase price was provided by the wife and the husband from their respective funds at that time.

13. Subsequent to purchase the parties resided in that property.

14. After the purchase the wife retained cash funds in her various accounts totalling about $83,000. She subsequently transferred funds totalling $83,790 by way of loan from her accounts to a joint mortgage offset MISA CBA account that was linked to the parties Suburb I property mortgage. The transfers were as follows:

    ·8 December 2006                $25,000

    ·2 January 2007  $  4,590

    ·5 January 2007  $54,200

    These deposits from the wife’s funds are acknowledged by the husband.

15. The wife continued to meet mortgage payments on the Suburb C property by way of funds withdrawn from the Suburb I CBA MISA offset account that she had advanced to that account by way of loan. The wife’s withdrawals from the CBA MISA offset account were paid into her Suburb C CBA mortgage until that facility was refinanced with a NAB mortgage in May 2011 of $340,395.

16. Funds were transferred to the mortgage from the joint MISA account in the period from late 2006 to refinance the facility were in total $115,520.

17. The NAB refinance by the wife in May 2011 was secured over the Suburb C property that remained in her sole name. Payments to this mortgage account were transferred from the parties’ joint NAB account  each month in the sum of $2,252.59. Payments, until refinance in January 2014, were about $69,812. During this time rental payments received into the joint account were about $57,000.

18. In January 2014 the wife again refinanced her Suburb C property with the CBA discharging the NAB mortgage and borrowing $325,000 by way of an interest only facility. Interest payments were debited to the parties’ joint NAB account. The husband acknowledges that the wife’s rental income has met the interest payments on this loan.

19. The husband asserts that from late 2006 to date the mortgage payments for the Suburb C property have been paid from the parties joint accounts and that he commenced paying half the mortgage payments from December 2006. Yet his evidence is that from 2006 to date net rental income has been about $180,000. This was income of the wife.

20. In November 2013 the parties jointly purchased at auction a further property at J Street, Suburb K. The property was purchased for $825,000. Settlement of the purchase was effected in January 2014 with the parties’ mortgage obligations over the Suburb I property and the wife’s mortgage obligation over her Suburb C property being refinanced at that time in the sum of $325,000 being an interest only facility for five years and thereafter principal and interest payments for a period of 25 years.

21. At the time of purchase of the Suburb K property the parties borrowed a further sum of $90,000 by way of an interest only facility for five years and thereafter principal and interest payments for 25 years with the sole security for the borrowing being the wife’s property at Suburb C. These additional funds, it appears, were applied to a duplex development that the parties undertook on the Suburb K property after purchase.

22. The parties separated in June 2015. Subsequent to separation the parties and the children continued to reside in the Suburb I property for a period until February 2016. Thereafter the wife has resided in the Suburb I property and the husband has resided in the Suburb C property since February 2016.

23. In August 2015 the wife’s long term tenant at the Suburb C property vacated and some minor renovation and repair work was done at the property with the cost of that work paid for by the wife.

24. As can be seen the wife’s capital loan contribution to the joint MISA account and the property rent plus the wife’s available income substantially, if not completely, account for funds available for the mortgage payments on the Suburb C property.

The relevant provisions of the Financial Agreement

1. For the purposes of the Financial Agreement the wife’s Suburb C property is described as her “separate property” with a value at the time of the Financial Agreement of $370,751 and subject to a mortgage at the time of the Financial Agreement of $350,751.

2. Otherwise, the Financial Agreement relevantly provides:

   3.3      Despite the terms of clause 4, [the wife]and [husband]  acknowledge and agree that from the date of this Deed, all mortgage repayments, council and water rates and strata levies, repairs and maintenance of any kind made in connection with the [Suburb C] property shall be the responsibility of the parties equally.

   3.4      [The wife] agrees that from the date of this Deed, [the husband] shall hold a 50 % beneficial interest in the [Suburb C] property in return for taking on 50 % of the loan remaining on the [Suburb C] property.

   (emphasis added)

3. It is the wife’s contention that by reason of the ongoing financial arrangements between the parties subsequent to the Financial Agreement that the husband has not done so and accordingly he is not entitled to any beneficial interest in the Suburb C property.

4. It is the husband’s contention that he has complied with his obligations under the terms of clause 3.4 of the Financial Agreement such that the wife should hold the property in trust as to a 50 per cent beneficial interest for him.

5. The matter for determination depends on what is meant by the phrase “taking on” in clause 3.4.  It appears the husband’s contention is that he performed his obligation under the Financial Agreement by making payments over the period of the relationship. That is, he accepted the positive obligation (or the taking on) of 50 per cent of the mortgage obligation from his resources. This, he asserts, is by inference from the circumstance that the parties to an extent pooled their incomes into joint accounts from time to time.

6. The husband, however, acknowledges the significant capital contribution of the wife to the joint account from which, at first, mortgage payments were made and the receipt of rental payments by her during the whole period. None of it his funds. In addition, the wife was in salaried employment during this initial period.

7. There is no evidence as to the husband’s taxable income over the subject periods. Nor is there any evidence of any direct contribution by him to the ongoing mortgage liability.

8. Over the period after the refinance in 2011 rental payments met a significant portion of the regular periodic payments. After the “interest only” refinance in January 2014 the rental payments clearly met such obligation.

9. On the evidence before the Court the husband is not entitled to a 50 per cent beneficial interest in the property under the provisions of the Financial Agreement.

10. Orders will be made accordingly.

The wife’s redundancy: compensation?

1. In March 2012 the wife received a voluntary redundancy payment from her then employer. She had worked there since 2005. The gross amount received by the wife was $84,652. The payment comprised a severance payment of 17 weeks salary and 12 weeks payment in lieu of notice. The total of these payments was $59,490 gross and $51,380 after tax. Otherwise the wife received payments by way of accumulated annual leave and long service leave totalling $25,161 gross and $17,236 after tax.

2. It is the wife’s contention that this voluntary redundancy payment is “separate property” as it is a payment that falls into the category of payments provided for in clause 1.1 (g) (ii) of the Financial Agreement being a payment by way of:

   gifts, inheritances or lump sum compensation payments and damages awards for personal injury.

3. The wife argues that the payment she received should fall into the category of “lump sum compensation payments” or be regarded as payment of a similar kind or “ejusdem generis”, contending that the general rule for interpreting statutes and other writings is by assuming that a general term describing a list of specific terms denotes other things that are like the specific elements.

4. The grammatical and ordinary sense of words should be adhered to unless there is something reasonably plain upon the face of the document to be construed that requires them to be used in a sense limited to things  “ejusdem generis”  with those which have already been specifically mentioned: see Addison v Cain (1932) 47 CLR 208 per Dixon J.

1. Again in Addison v Cain (1932) 47 CLR 208 McTiernan J observed:

   … Speaking of the  ejusdem generis  rule, Lord Esher M.R., in Anderson v. Anderson [4], quoted the following statement from Parker v. Marchant [5]: “It is, however, incumbent on those who contend for the limited construction to show that a rational interpretation of the will requires a departure from that which ordinarily and prima facie is the sense and meaning of the words”; and then proceeded to say: “Nothing can well be plainer than that to show that prima facie general words are to be taken in their larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things  ejusdem generis  with those which have been specifically mentioned before.” …

2. In R v Regos (1947) 74 CLR 613 Latham CJ said with respect to the ejusdem generis rule that it:

   … … is sometimes stated in very broad terms as, for example, by Lord Campbell in R v Edmundson (1859) 28 LJ MC 213, at p 215 — “Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified.” But in more recent cases a very different view has been taken of the rule as, for example, in Anderson v Anderson (1895) 1 QB 749, where it was said in the Court of Appeal that “prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before” (1895) 1 QB, at p 753. The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v Dowgate Steamship Co Ltd (1910) 1 KB 410, at p 419).

   The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co Ltd v Hamilton, Fraser & Co (1887) 12 App Cas 484, at p 490). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co v SS Knutsford Ltd (1908) 2 KB 385, it was pointed out that “Unless you can find a category there is no room for the application of the ejusdem-generis doctrine” — per Farwell LJ (1908) 2 KB, at p 403: see also per Vaughan Williams LJ (1908) 2 KB, at p 395 and per Kennedy LJ (1908) 2 KB, at p 409. In Mudie & Co v Strick (1909) 100 LT 701, Pickford J said: “You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then . . . you must read all the particular words separately, and take the general words separately also” (1909) 100 LT, at p 703. In SS Magnhild v McIntyre Bros & Co (1920) 3 KB 321, there is a full discussion of the rule by McCardie J in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things “possess some common and dominant feature” so that they can be described as constituting a genus distinguished by that feature.
   …
   The authorities to which I have referred show that the ejusdem generis rule can be applied only where there is a genus to which all the acts or things specifically mentioned can be assigned. It is not sufficient to show that there are two or more such genera...

   (emphasis added)

3. In Subagio Lagaida Prabowo v Republic of Indonesia, the Attorney-General of the Commonwealth of Australia and Ronald Bruce Gentle [1995] FCA 1764 Hill J said:

   [42] The rule that the width of a word of general application may be limited by an enumeration of words of greater specificity which precede it, described by its Latin tag as the ejusdem generis rule, requires more caution in its application. Clearly it can only apply where there is to be found in the statute an indication of the relevant genus. It will be easier to find a genus the more items there are which have been enumerated. There could be no scope for the application of the rule, for example, where only one word appeared before the general expression: see Pearce and Geddes: Statutory Interpretation in Australia, 3rd Ed, at para4.18 and cases there referred to.

   [43] Often it will be easier to apply the rule where the word “other” appears prior to the word to be interpreted. For example, in Brown v Patch (1899) 1 QB 892 at 898 the word “place” in the collocation “house office room or other place” had to be interpreted ejusdem generis with the words which preceded it. On the other hand the rule may nevertheless be attracted in some cases, notwithstanding that the word “other” has not been used: Brownsea Haven Properties Ltd v Poole Corporation (1958) 1 Ch D 57.

4. In Deputy Commissioner of Taxation v Clark [(2003) 57 NSWLR 113, Spigelman CJ (with whom Handley and Hodgson JJA relevantly agreed) said, of the ejusdem generis rule at [127] that:

   The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]- [29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought [to] be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.

5. Perhaps the above discussion is superfluous as there is not provided in the subject clause any words of general application or an “indication of the relevant genus” such as may require a consideration of the ejusdem generis rule.

6. In such a circumstance the question is whether the payment received by the wife falls within the category so provided as “lump sum compensation payments” being the only descriptor that could possibly apply.

7. The payment received by her was of and incidental to her employment. It comprised several components: long service leave and holiday pay accrued by reason of her ongoing employment and payment of salary in lieu of notice. These payments clearly cannot be seen as payments by way of “compensation” but as payments to which an entitlement accrued by reason of her employment and the conditions of such employment.

8. As to the severance payment it is to be inferred that such payment was a payment to which the wife became entitled by reason of the terms and conditions of her employment and her election to take voluntary redundancy.

9. The severance / redundancy payment of $33,743 was a tax free payment but formed part of the wife’s employment entitlements. It is as such not a compensation payment but an entitlement that had favourable taxation treatment.

10. Thus the payment received by the wife does not constitute a payment for the purposes of clause 1.1 (g) (ii) of the Financial Agreement.

Capital Gains Tax Obligations

1. The matter for consideration is what orders, if any, should be made as to the operation of  clause 6.1 of the Financial Agreement as to prospective Capital Gains Tax (“CGT”) liabilities that may accrue to the wife.

2. Clause 6.1 of the Financial Agreement provides:

   6.1      Stamp duty and tax (including capital gains tax and goods and services tax) arising or accruing upon or by virtue of the transfer or alienation of particular property or financial resources (which may arise by virtue of this Deed becoming operative) will be borne by ([the husband]) and if charged or levied against the other party, that party will be indemnified by their spouse or former spouse to the extent of the charge or levy (and any penalties arising from such levy or charge).

   (emphasis added)

3. By reason of the discussion above this provision has no relevance to the wife’s Suburb C property as it remains in her separate ownership.

4. As to the parties “shared property” for the purposes of the Financial Agreement their obligation is to divide such property equally between them (after an adjustment in relation to separate property) with such division initially to be by a “pick a pile method”.

5. In default of agreement as to division of their property under the “pick a pile method” then the parties are required to:

   … use their best endeavours to reach agreement as to sale, including sale by one of the parties of his/her share in that property, … (Clause 4.11).

6. The Financial Agreement clearly contemplates the ability of the parties to agree as to the acquisition of property by one or the other as distinct from a sale on the open market. Should that be the case, it is common ground then, subject to appropriate implementation, that the transfer of shared property from one to the other would not attract CGT liability but be exempt as being a transfer pursuant to a financial agreement following breakdown of a marriage to which rollover relief would apply: see Income Tax Assessment Act 1997 (Cth).

7. As best as can be determined assets of the parties that have some prospect of enlivening any future CGT liability would be limited to the parties interests in the jointly owned property at Suburb K that has been developed into duplex accommodation. Otherwise, the home at Suburb I, being a primary residence as the matrimonial home, is agreed to be exempt if transferred from one party to the other as contemplated by the Financial Agreement.

8. The transfer of that Suburb K property between the parties so that they each own an individual part of the duplex is contemplated by the provisions of the Financial Agreement and being inter spouse transfers pursuant to the provisions of a financial agreement consequent to the breakdown of marriage would be exempt from stamp duty and attract CGT rollover relief.

9. Otherwise, it is clear that in the event that no agreement can be reached as to the Suburb K property and it is sold as a whole thus being a transfer or alienation of property as provided for in the Financial Agreement, then the obligation for CGT, in so far as the wife is liable, is an obligation that under the Financial Agreement would be payable by the husband.

CONCLUSION

1. By reason of the above discussion the import and effect of the Financial Agreement is commendably clear and it is appropriate that no orders be made as to the issue of CGT as provided for in the Financial Agreement by reason of the various options available to the parties for minimising the impact of such taxes on disposition from one to the other or on sale.

2. Orders are made as set out at the forefront of these reasons.

COSTS

1. The question of costs is to be reserved with any application to be made by way of written submissions. Orders will be made accordingly.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2016.

Associate: 

Date:  19 December 2016