Cambridge and Cambridge - [2010] FamCA 976

FAMILY COURT OF AUSTRALIA

CAMBRIDGE & CAMBRIDGE

[2010] FamCA 976

FAMILY LAW – PROPERTY – Proceedings primarily for settlement of property – Husband failed to disclose material which was relevant to an issue in the property proceedings – Significant add backs to property pool – Court not persuaded that husband’s interests should be considered without undue caution – Husband made significant initial capital contribution to marriage – Wife’s contributions result in significant erosion of the husband’s initial capital contribution– Court of the opinion that the wife should receive 36 per cent and the husband 64 per cent of the net asset pool – Norbis v Norbis (1986) 161 CLR 513 – Kardos v Sarbutt [2006] NSWCA 11

Family Law Act 1975 (Cth) s 75(2)

Norbis v Norbis (1986) 161 CLR 513
Kardos v Sarbutt [2006] NSWCA 11

APPLICANT:

Ms Cambridge

RESPONDENT:

Mr Cambridge

FILE NUMBER:

DUC

420

2008

DATE DELIVERED:

9 September 2010

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Dubbo

JUDGMENT OF:

Coleman J

HEARING DATES:

6-8 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Booth Brown Samuels & Olney

COUNSEL FOR THE RESPONDENT:

Mr Berry

SOLICITOR FOR THE RESPONDENT:

Peacockes

Orders

That the husband and/or W Partnership cause to be transferred to the wife any right title or interest he or they may have in the Commodore vehicle possessed by the wife.
That the wife retain absolutely and beneficially all property real or personal possessed by her.
That the husband pay to the wife the sum of $478,000.00 which sum shall be payable upon the terms and conditions set out hereunder:
(i) The sum of $200,000.00 shall be payable on or before 1 March 2011;
(ii) The sum of $200,000.00 shall be payable on or before 1 March 2012;
(iii)The sum of $78,000.00 shall be payable on or before 1 March 2013;
(iv)Interest shall be payable on the outstanding balance of the wife's entitlement as and from 1 November 2010 until the whole of such entitlement has been paid, such interest to be calculated and payable quarterly in arrears at a rate 1 percentage point in excess of the rate applied to the husband and W Partnership’s credit facilities with Suncorp Metway (currently 7.39%);
(v)The balance outstanding of the wife's entitlement shall be adjusted on 1 January 2012 in accordance with the percentage movement of the CPI for the preceding calendar year as published by the Australian Bureau of Statistics;
(vi)Default in payment of any instalment of principal or interest pursuant to these orders which continues for 30 days shall entitle the wife to require the whole of the balance of principal and interest then outstanding to be paid;
(vii)Payment of the wife's entitlements pursuant to these orders shall be and remain a charge upon the husband's interest in A, B, C, D, E, F, G, H properties, W Partnership, W Pty Ltd and the Cambridge Farming Trust, and be charged over the livestock plant and equipment of the husband depastured, installed or located…

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 Cambridge and Cambridge

Details

AGLC: Cambridge and Cambridge [2010] FamCA 976
Case: [2010] FamCA 976
Decision Date: 9 September 2010

CaseChat Overview and Summary

In the matter of *Cambridge and Cambridge*, Coleman J considered a dispute between a husband and wife concerning the division of their property. The wife sought orders for the transfer of certain assets and a significant monetary sum, along with provisions for payment, interest, and security.

The court was required to determine the appropriate division of property between the parties, including the allocation of specific assets and the quantum of any financial settlement. Further issues included the terms and conditions of any payment order, the accrual and calculation of interest, and the mechanism for adjusting the outstanding balance. The court also had to consider the creation and priority of any charge over the husband's assets to secure the wife's entitlements, as well as the husband's liability for partnership and company debts. Finally, the court addressed the confirmation of existing parenting orders and the matter of costs.

Coleman J ordered the husband to transfer his interest in a Commodore vehicle to the wife, and that the wife retain all property in her possession absolutely. The husband was ordered to pay the wife $478,000, payable in instalments over three years, with interest on the outstanding balance calculated at 1% above the Suncorp Metway credit facility rate. The outstanding balance was to be adjusted annually by the CPI. The wife's entitlement was secured by a charge over various properties, partnership interests, and company assets, ranking second in priority to the husband's secured indebtedness. The husband was also ordered to indemnify the wife against liabilities arising from W Partnership, W Pty Ltd, and the Cambridge Farming Trust, and the wife was to assign any entitlements she had against these entities to the husband. The parenting orders of Dubbo Local Court were confirmed, and costs were reserved.

Orders

Orders of the court

That the husband and/or W Partnership cause to be transferred to the wife any right title or interest he or they may have in the Commodore vehicle possessed by the wife.

That the wife retain absolutely and beneficially all property real or personal possessed by her.

That the husband pay to the wife the sum of $478,000.00 which sum shall be payable upon the terms and conditions set out hereunder:

(i) The sum of $200,000.00 shall be payable on or before 1 March 2011;

(ii) The sum of $200,000.00 shall be payable on or before 1 March 2012;

(iii) The sum of $78,000.00 shall be payable on or before 1 March 2013;

(iv) Interest shall be payable on the outstanding balance of the wife's entitlement as and from 1 November 2010 until the whole of such entitlement has been paid, such interest to be calculated and payable quarterly in arrears at a rate 1 percentage point in excess of the rate applied to the husband and W Partnership’s credit facilities with Suncorp Metway (currently 7.39%);

(v) The balance outstanding of the wife's entitlement shall be adjusted on 1 January 2012 in accordance with the percentage movement of the CPI for the preceding calendar year as published by the Australian Bureau of Statistics;

(vi) Default in payment of any instalment of principal or interest pursuant to these orders which continues for 30 days shall entitle the wife to require the whole of the balance of principal and interest then outstanding to be paid;

(vii) Payment of the wife's entitlements pursuant to these orders shall be and remain a charge upon the husband's interest in A, B, C, D, E, F, G, H properties, W Partnership, W Pty Ltd and the Cambridge Farming Trust, and be charged over the livestock plant and equipment of the husband depastured, installed or located upon the properties herein referred to;

(viii) The charge hereby created shall rank second in priority only to the secured indebtedness of the husband with respect to such assets; and

(ix) That the wife be entitled to apply for further orders by way of enforcement in the event of a default within the terms of Order 3(vi) hereof.

That the husband indemnify the wife with respect to any liability of the wife arising from or in relation to W Partnership, W Pty Ltd and the Cambridge Farming Trust and the wife assign to the husband such entitlement if any as she may have against or in relation to any such entities howsoever arising.

That the parenting orders of Dubbo Local Court made on 6 February 2009 be confirmed as final orders.

That costs be reserved.

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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