Carbonaro and Carbonaro
[2007] FamCA 738
•25 July 2007
FAMILY COURT OF AUSTRALIA
| CARBONARO & CARBONARO | [2007] FamCA 738 |
| FAMILY LAW - PROPERTY SETTLEMENT – Valuation methodology - Contributions |
| Family Law Act 1975 (Cth) Sections 75 & 79 |
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of Hickey(2003) 30 Fam LR 355
InGWR & VAR [2006] FamCA 894
Spencer v Commonwealth (1907) 5 CLR 418
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139;
| APPLICANT: | Mr Carbonaro |
| RESPONDENT: | Mrs Carbonaro |
| FILE NUMBER: | SYF | 2155 | Of | 2006 |
| DATE DELIVERED: | 25 July 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Judicial Registrar Loughnan |
| HEARING DATE: | 20 & 21 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G. Gould |
| SOLICITOR FOR THE APPLICANT: | Murphys Lawyers Civil |
| COUNSEL FOR THE RESPONDENT: | Mr G. Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Michael Doherty & Co |
Orders
1.The parties shall forthwith do all acts and things and sign all documents necessary to place the properties situate at and known as A1, A2 & A3 in the State of New South Wales on the market for sale, as a development site.
2.In the event that the properties have not sold as one site within 3 months from the date of these orders or at such earlier or later time as the parties may agree, they are to forthwith do all acts and things and sign all documents necessary to place the properties situate at and known as A2 & A3 in the State of New South Wales on the market for sale as separate properties.
3.In the event that the properties have not sold as one site within 3 months from the date of these orders or at such earlier or later time as the parties may agree, the husband may elect to retain the property situate at and known as A1 in the State of New South Wales at the value of $320,000 but in the event that he does not so elect within 48 hours of the expiration of that 3 month period, the parties shall forthwith do all acts and things and sign all documents necessary to place that property on the market for sale.
4.In the first instance, the said sales shall be by private treaty. In the event that contracts have not been exchanged in relation to the properties or any of them, pursuant to the provisions of orders 2 or 3 above within 2 months of them being placed on the market for sale, then the parties shall do all things and sign all documents as are necessary to list such property or properties for sale by public auction with an agent to be agreed, and in the absence of agreement within 7 days after either party has nominated an agent to the other in writing, with such agent and in such manner as is recommended by the nominee of the President for the time being of the Real Estate Institute of NSW.
5.In relation to any sale of the A properties they are to be offered for sale at a price agreed between the parties and in the absence of agreement within 7 days after either party has nominated a price to the other in writing, at a price that is recommended by a valuer appointed by the President for the time being of the NSW Division of the Australian Property Institute (Inc) Incorporated.
6.That upon completion of the said sale or sales of the said properties, the proceeds are to be paid as follows:
a)In payment of real estate agent’s fees and other reasonable costs of sale;
b)In discharge of the mortgage secured over the said properties;
c)Payment of any taxes in respect of the sale of the properties including land tax and capital gains tax;
d)In payment of $10,391 to P College;
e)In payment of any balance so that the wife receives 56% of the net value of the A properties.
f)In payment of any remaining balance to the husband.
7.In the event that the husband elects to retain the property at A1 in the State of New South Wales, pursuant to order 3, once the properties at A2 & A3 are sold and the payments referred to in subparagraphs b), c) and d) have been made, the wife shall forthwith do all acts and things and sign all documents necessary to transfer her right title and interest in the property situate at and known as A1 in the State of New South Wales to the husband.
8.In the event that wife transfers her right title and interest in the property situate at and known as A1 in the State of New South Wales to the husband pursuant to order 7, the husband shall forthwith discharge any remaining mortgage secured on the title of that property and shall thereafter indemnify her in relation to any outgoings referable to that property.
9.The husband is declared to own the items of personalty described in annexure A to these orders.
10.Unless the parties otherwise agree they shall forthwith do all acts and things and sign all documents necessary to place the items of personalty described in annexure B to these orders on the market for sale at the best price reasonably obtainable.
11.Upon completion of the said sale or sales conducted pursuant to Order 10, the proceeds are to be paid as follows:
a)In payment of any costs of sale;
b)In payment to the wife of one half of the net proceeds of sale; and
c)In payment of the balance to the husband.
12.Other than as set out in these Orders or as otherwise agreed between the parties, each party is hereby declared to be the sole legal and beneficial owner of all property in their respective possessions.
13.In the event that either party should fail to sign any document necessary for the implementation of these orders, the Registrars of this Court are appointed pursuant to s.106A of the Act to sign such document in the name of the defaulting party and to do all things to give validity to such document.
14.The operation of these orders is suspended until 4.00 pm on 29 August 2007.
15.Leave is granted to both parties to re-list these proceedings by arrangement with the Associate to Judicial Registrar Loughnan on 7 days notice in relation to the form or implementation of these orders or in relation to legal costs, provided that leave can only be exercised in relation to the form of the orders so as to list the matter on or before 28 August 2007.
Annexure A
| Shed 1 |
| Set of oxy acetylene with trolley,mask & gauge |
| Migoman 315 welder |
| 1 1/4 ton trolley jack |
| Abbot & Ashby 8" angle grinder/linisher |
| Unbranded 10cfm compressor |
| Visa-grip board of assorted vice grips |
| Assorted power tools - 9: grinder |
| - 2 sanding vibrators |
| - 1 x 7" sander |
| 1 x 4" bench mounted vice |
| 1 x 6" bench mounted vice |
| T&E flair tool kit |
| Sutton Gameflex hole screws |
| 1 socket set-metric imperial 1 part socket set |
| Floor mounted body puller & chains |
| Approx 160 parts bins |
| 14' aluminium ladder |
| Schwank burner heat lamp |
| Lamp & leads |
| Brown paper masking roller |
| Steel 2-door locker |
| Workshop creeper |
| Fuson 12 speed pedestal drill |
| Offset vice |
| Castol APXT grease gun & pump |
| Approx 10 electric leads varying lengths |
Shed 2 1/2 size billiard table with string pockets 1 old refrigerator 1 old poker machine 1 cordon bleu BBQ & trolley Pedestal fan Workshop trolley Portable tool box & trolley with parts drawers Purpose built stainless steel child support frame 1955 [H Car]— Rolling body-no engine or transmission Hafco metalmastser vertical mill no 1 Home made body rotisserie Assorted tools contained within tool box 3 antique restored petrol bowsers Falcon 12 Volt compressor
Rear Shed
1. approx 12 [H] doors
2. approx 14 [H] guards 4. 1955 tray for [H] pick up truck
| MOTOR VEHICLE |
| Holden Statesman |
| ASSORTED TRAILERS |
| Twin axle steel box trailer short V bar unregistered |
| Twin axle road registered car trailer |
| Tri-axle unfinished gooseneck trailer |
Annexure B
| Shed 1 |
| Molnar mF 1705-85A-2 '/2 ton 2 post hoist |
| Assorted power tools - 5 electric hand drills |
| - 2 x 4" grinders |
| - 1 set Verniers |
| 5 spray guns |
| Wall mounted peg board with 50 pieces hand tools |
| Airmaster pedestal fan |
| 8" bench grinder |
| 6.3m steel wall mounted shelf units |
| 2 axle stands |
| 6 drying frames |
| Home made hydraulic pulley |
Vehicle parts & panels including 27 assorted rusted [H] doors”
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2115 of 2006
| Mr Carbonaro |
Applicant
And
| Mrs Carbonaro |
Respondent
REASONS FOR JUDGMENT
After living together for more than 20 years the parties cannot agree on a settlement of their property.
Applications
By a minute submitted prior to the commencement of the hearing the husband seeks:
1.That within 28 days of the date of these Orders, the wife transfer to the husband all of her right, title and interest in the property at [A1].
2.That the parties forthwith do all acts and things necessary to list for sale and sell for the best price reasonably obtainable the properties and [A2] and [A3].
3.In the first instance, the said sale shall be by private treaty, but in the event that contracts have not been exchanged within 8 weeks from the date of these Orders, then the parties shall do all things as are necessary to list them for sale by public auction with an agent to be agreed, and in the absence of agreement, with such agent and in such manner as is recommended by the nominee of the President for the time being of the Real Estate Institute of NSW.
4.That upon completion of the said sale of the said properties, the proceeds are to be paid as follows:
(a)In discharge of the mortgage secured over the said properties;
(b)In payment of real estate agent’s fees and other reasonable costs of sale;
(c)Payment of any taxes in respect of the sale of the properties including land tax and capital gains tax;
(d)Payment of any balance to the wife.
5.That upon compliance with the last preceding order, the husband pay to the wife such sum as is necessary to ensure that she receives by way of property settlement 50% of the value of the net asset pool (including the net proceeds of sale of the said properties and including such property as she otherwise retains).
6.That other than as set out in these Orders, is party is hereby declared to be the sole legal and beneficial owner of all property in their respective possessions.
7.That any monies standing to the credit of the parties in any joint bank account are to become the property of the husband.
The wife seeks orders in accordance with her Amended Response to an Application for Final Orders filed 2 March 2007.
Issues for determination
The issues for determination are:
1.Is the appropriate method of valuation of A1, A2 and A3:-
a. Block by block valuation;
b. Development site valuation or
c. otherwise
2.Is the husband the owner of :
a. A 1972 [HC]
b. A 1955 [H] Sedan;
c. A 1955 [H] pick up truck;
d. The items alleged by him in paragraph 86 of his affidavit sworn 24.1.07 not to be his or the wife’s.
3.Is the husband the owner of the business conducted by C P/L?
4.Is the wife engaged in employment by her sister?
Short History
The husband and wife are 46 and 42 years of age respectively. They were married on 24 January 1987 and separated under one roof on 2 February 2005.
Children
The parties have three children:
Swho was born in March 1988 and as at the date of the hearing was 19 years of age;
Jwho was born in February 1990 and as at the date of the hearing was 17 years of age; and
Twho was born in September 1991 and as at the date of hearing was 15 years of age
Background Facts
On 19 April 1985 the husband bought a property at S for $45,000. He borrowed $38,000. He rented the property.
In 1986 the parties bought the property at A1 for $32,000. One month after the purchase of A1, the mortgage was discharged by the husband using insurance monies received when his International truck was stolen.
On 23 December 1986 the wife received $9,578 for compensation for an accident. She gave this money to the husband.
On 24 January 1987 the parties were married and started to live together.
At that time the husband had:
(a)An interest in a property at S;
(b)A number of vehicles and a motorcycle.
At that time the wife had:
(a)An interest in land at A; and.
(b)A Torana motor vehicle re-built by husband
At that time the joint bank account held approximately $11,000.
In July 1987 the wife transferred a half share of A1 to the husband.
In 1987 the parties constructed a house on A1 using monies from the sale of a Holden Statesman limousine ($19,000) and sale of Harley Davison motorcycle ($13,300) and sale of husband’s two Commodore motor vehicles. The parties did some work themselves.
On 2 September 1996 the husband bought A2 for $171,500. The $40,000 deposit came from the sale of a truck which the husband had purchased and improved, together borrowings of $135,000 from the St George Bank.
In 1999 the S property was sold for $127,000. The net proceeds of $70,000 were used to purchase 4 large trailers and another truck. The husband also purchased a stretch Q limousine to use in his wedding car business.
In 2003 the husband sold a 1955 H for $35,000, a stretch limousine for $20,000, a black stretch limousine for $6,000, a 1959 vehicle for $20,000, and a Holden Utility for $21,000. Those moneys were used to pay out the mortgage over A2.
In 2003 the parties purchased A3 for $340,000. $354,346 was borrowed from the St George Bank to purchase the property and pay stamp duties and legal expenses.
On 23 February 2003 Mr L says he purchased the 1972 HC motor vehicle.
The parties separated under one roof on 2 February 2005. The husband alleges that the wife removed the husband’s documentation including cheque butts and bank statements.
The husband has since permitted the mortgage on A3 to fall into arrears and has stopped paying school fees for the parties’ daughters.
In September 2005 a company “[C Pty Ltd]” purchased a factory unit at R. The principal of that company is the husband’s sister. The factory unit had previously been occupied by a friend of the husband who had been evicted. The husband did much of the negotiations for his sister in relation to the unit and equipment on the premises including a spray booth. The husband provided a few thousand dollars towards the purchase. The husband says that in 2006 he commenced working for his sister in premises owned by her. It is his case that his sister established a business from which he and his nephew could work. In fact his nephew does not work in the business.
On 26 October 2005 the single expert inspected the shed. 2 motor vehicles were missing.
For reasons that are not explained anywhere, the parties have remained living under one roof, with their daughters, for more than two years after they separated. To add to the tragedy the wife says that her brother was killed one week after separation. The husband lost his job after separation. The wife says the parties have spoken only a few words to each other over that period. They present as angry and hurt. That has affected their behaviour. For example there is the farcical evidence about health fund membership. The husband stopped paying the family membership after he came to believe from something he was told by the fund that the wife had arranged it so that the money he contributed to HCF resulted in the wife and children being covered at a high level and him being covered only for basic benefits. Enquiries made by the solicitor for the wife during the hearing reveal that what the husband believed, cannot be true. HCF now advise that that is not possible for one member of a family, covered by one membership, to be covered at a lower rate than the other members of that family. In any event that caused the husband to stop the payments and thereafter he paid only for his own membership. The wife says that she discovered that the husband had stopped paying HCF some months after separation and so she arranged for the coverage to resume but not for the husband because he stopped paying and she now pays the premium. As I understand it the net effect is that the wife pays a family membership, covering herself and the girls and the husband pays for separate cover for himself.
Credit and Submissions
The evidence of the witnesses
The witnesses called for cross-examination were the parties, Mr L, Mr T, Ms J and Mr B.
There are some relevant factual disputes.
The husband was not a good witness. His oral evidence got off to a bad start as it transpired that, although the jurats on his sworn documents do not reflect it, he says that he cannot read or write. The husband reacted badly when this issue was raised with him in cross-examination. One can understand why the husband might have thought that the wife’s counsel was being insensitive but I trust that those advising him have explained that counsel was obliged to explore the issue given its impact on the evaluation of the written evidence in the case. The husband’s current Financial Statement was read over to him by his solicitor and the husband told the solicitor that the contents were correct. An affidavit was tendered during the second day of the hearing from Patricia Jenman who was the husband’s solicitor at the time his primary affidavit was sworn. She deposes to a process whereby drafts of the affidavit were passed between herself and the husband. She went over the affidavit with him and he told her that his sister had also gone over it with him and asked her to made the changes that had been endorsed by the sister on the draft. Those changes were made and the document was sent home with the husband for his sister to read to him. The draft came back with more changes in the form of post-it notes and pencil handwriting by his sister. Those changes were made and again the draft was sent home with the husband to have his sister read it to him. A couple of weeks later the husband returned the affidavit to the solicitor.
The evidence about the husband’s capacity to read and write is important, not least because there are written records that purportedly evidence business transactions between the husband and Mr L, each of whom says he cannot read or write.
The husband says that at school he was a good student but had difficulties reading and writing and that he left school at 15 years of age. He referred to his “disability” in his affidavit and says that in order to complete his trade qualification as a tradesman in 2000, he took a course through M TAFE that he was told was designed for foreign tradespeople to obtain Australian qualification. I take it that he means that some latitude was allowed in relation to written work. In cross-examination at first he angrily responded to questions on this issue by saying that he could not read at all. Minutes later he volunteered that he can read some words. Confusingly, in relation to Mr B’s report on the value of personalty, the husband says in paragraph 85 of the affidavit in relation to annexure M - ..”Next to each item I have written down the owner of the item in question…”. Perhaps that is just carelessly expressed.
I am satisfied that there are some limitations in the husband’s facility in reading and writing. I do not know the limits of his capacity. He can sign his name and he recognises some words. The husband is obviously a highly skilled tradesman and it is a tribute to him that he has been able to run various businesses and transact many commercial deals over the years, with restrictions on his literacy.
The husband says that he does not have a good memory for dates and he was unable to give precise estimates of the dates of relevant events. In oral evidence and in describing the process of preparing his written testimony it appears that he gave some answers not because he was confident of the answer but simply because he was asked. For example his oral evidence about the date he last saw the 1972 HC motor vehicle was variously, “can’t recall”, “late 2006”, “mid 2006”, “can’t say”. The last answer was given in response to a question to the effect “could it have been in 2000?”. When asked why he said both mid 2006 and late 2006 he responded “because you wanted an answer”. The husband says that Mr L and Mr L’s son each wrote one of the two receipts for car bodies purportedly sold by the husband to Mr L. Copies of those receipts which are attached to Mr L’s affidavit. The husband agreed that he saw Mr L prepare one of the two receipts, but he could not recall which one. Mr L is a witness in the husband’s case. He gave evidence to the effect he did not prepare any receipt and that he cannot read or write. The husband could not account for the fact that most of the representations made by his former solicitor in a letter dated 20 May 2005 in relation to a 1955 H pick up truck were entirely inconsistent with his evidence on that issue before this Court. When the proposition from that correspondence in relation to “.. the Chassey (sic) of a 1955 [H] Pickup which he (the husband) is doing up for a friend, [Mr L]” was put to the husband in cross-examination he questioned the use of the term ‘chassis’ and rejected the same proposition. I take that to mean that the husband’s evidence would be that he did not work on the chassis of a 1955 H pickup for a friend. The husband said that the propositions from that letter that the HC was sold to Mr L 15 years ago and for $15,000 were also both wrong.
Mr L was not successfully challenged in his testimony.
Mr T was not successfully challenged in his testimony.
Unfortunately, the husband and Mr L and Mr T gave some inconsistent evidence. The husband was asked about the conversations he had during the luncheon adjournment on the first day of the hearing. He said that he had spoken to Mr T and his wife, Mrs T, and to Mr L. He was asked about the topics of conversation with Mr T and mentioned what they had or were having for lunch and Mr T’s pub. He was asked about the topics of conversation with Mr L and mentioned about lunch and Mr T’s pub. He strongly denied that they had spoken about the case. Mr L said that he said ‘hello’ to the husband but otherwise had no conversation with him. Mr L denied that he was present when the husband spoke to others. He did not know if the husband had spoken to Mr T about Mr T’s pub. Mr T was asked if he had a conversation with the husband at lunch and said ‘not at all” and immediately thereafter “about cars”. He was asked if Mr L was present during that conversation and he responded to the effect that Mr L had been opposite. He was asked if he and the husband had discussed Mr T’s pub and he said “no”. He was asked if they had discussed the case and he said “no”. The husband’s evidence in relation to the purchase of a 1955 H pick up truck was that he did the deal, that he sent the $3,000 to the vendor, he thought he sent a money order and “[Mr T] reimbursed me”. Mr T’s evidence on that issue was to the effect that the payment was “through [the husband]” and “I gave [the husband] the cash” and “I paid, he (the husband) did not have the money”.
On the positive side that evidence suggests that the husband and Messrs L and T did not collude in relation to their cross-examination. On the negative side I am left with little confidence about the husband’s testimony on the details of the relevant history of events.
The wife was a poor witness. She was argumentative and prone to addressing what she thought was the issue behind the question actually asked. As with the husband, she sometimes changed her answer within seconds of giving it. When asked, she made some concessions in favour of the husband but neither in her written evidence nor oral testimony did she volunteer any concessions. She would not concede that the husband came into the marriage with a stretch limousine despite conceding that it was used for their wedding. The wife allowed an issue to be identified in the case as to the ownership of a number of items valued by the valuer. In paragraph 86 of his primary affidavit the husband says that a number of specified items, valued at the former matrimonial home by
Mr B are not his and gives evidence about the real owners. The wife conceded in cross-examination that she had given no evidence about the items the husband says do not belong to him. It was put to her that the husband was correct (in his evidence about the ownership of those items) and the wife agreed. She conceded that she did not tell Mr B that the items in question do not belong to the parties.
In the circumstances I am not able to simply prefer the evidence of one party over that of the other. Findings of fact, where possible, must be determined issue by issue.
Mr B was cross-examined in relation to his valuation evidence. He made a concession in relation to his valuation of assorted car parts that $3,000 was as good an estimate as the $10,000 he reported on. He conceded that his valuation of three H motor vehicles that he did not inspect were dependent, in part, on the wife’s description of the vehicles. He strongly rejected lesser valuations offered by counsel for the husband. Otherwise he was not successfully challenged in his evidence or his opinion. There is no other valuation evidence to substitute for that of Mr B.
Submissions
It is agreed that the parties will arrange to divide or otherwise deal with the contents of the former matrimonial home and therefore the items for household contents should be left out of the list of assets.
The written submissions made on behalf of the husband are:
4. SECTION 79 CONTRIBUTIONS
1.Husband had considerable assets at time of marriage, wife having no assets of any considerable value.
2.Husband worked during marriage and contributed income for family and purchase of property.
3.Husband performed significant role as homemaker and parent during marriage.
4.Husband performed work on properties purchased by parties.
5. SECTION 75(2) MATTERS
1.Husband is aged 46 years.
2.Wife is aged 42 years.
3.Husband has suffered depression and anxiety as the result of the marriage breakdown and these proceedings.
4.Each party has capacity to maintain themselves.
5.Each party has duty to maintain the two younger children of the marriage who spend equal time in each party’s household.
6.Husband has limited capacity to read and write.
The oral submissions were to the following effect:
· The husband contends for a 60% distribution to him based on 60:40 on contributions because the imbalance of initial contributions and no section 75(2) adjustment;
· The husband and his witnesses should be preferred over the wife. The wife made no concessions and exaggerated her evidence. There should be no criticism of the husband because the details in the letter of his former solicitor were different to his evidence. The husband has no facility in English and the relevant mistaken representations are inherently unlikely;
· The wife conceded that her jewellery could have a value of $4,000 or $5,000 and it should be included at that figure;
· The husband should be accepted on the three disputed cars. Neither he, Mr L nor Mr T were successfully challenged in their evidence. The husband was not challenged on the evidence that he applied the proceeds of the cars sold to Mr L to orthodontal treatment for J and for a beauty course for S. If he received money for the cars then it is likely that he sold them. It was put to the husband that he had applied the proceeds of those vehicles to the new business – how could there be proceeds if he still owns the cars? This is an important issue because it represents a large proportion of the pool and therefore the Court should not lightly make a finding against the husband. If the husband is not accepted on this issue then it would be unfair to rely on the valuations of Mr B as they were based solely on the wife’s descriptions. In the event that the cars are deemed to be those of the husband then the husband seeks that the cars be sold;
· In relation to the agreed list of contents of the yard and sheds the husband wants to take all of the agreed items at the agreed value. In relation to the car parts valued by Mr B at $10,000 the husband will take them at the value ultimately conceded as a possible value by Mr B in cross-examination of $2,000. Otherwise the husband wants them, together with the disputed items on the list, sold and the proceeds divided.
· The husband relies on a list of assets and liabilities handed up during submissions;
· In relation to the two Mastercard debts, they should be both left out of the list of liabilities going to make up the net asset pool;
· The CGT figure of $20,000 relates to A2. A3 did not result in a taxable gain and A1 is not liable for CGT as it was the parties’ principal place of residence;
· The school fees should be included as a joint debt;
· The husband contends that the Court would not accept Mr B opinion of value insofar as he advocates for sale for development. Mr B concedes that with the A riots of 2006 and the general downturn in the property market that there have been no such developments recently in the area. The development was not achievable and therefore not a proper basis for valuation. The husband would want to retain A1 at $320,000. He should be allowed to do that because of his involvement in construction, because of the existence of his sheds and the work he does there and because it is the children’s home and they will be with him for half the time;
· The husband agrees to the sale of A2 & A3;
· The husband’s initial contributions were far greater than those of the wife. She brought in about $26,000 in the form of the personal injuries claim of about $9,500 and the deposit on A1. That is to be compared to the husband’s equity in the S property (sold in 1999 for $75,360), a $35,000 insurance payout on the International truck, $19,000 for the Holden Statesman limousine (both applied to the home on A1) and $13,300 for the Harley Davison motor cycle. In addition he had several other vehicles (including 2 Commodores) that were later sold;
· Otherwise the contributions were equal to separation and since. The wife cannot make a case of greater contributions since separation. Each of the parties suffered emotionally, the husband lost his job and there should be no further adjustment;
· As to section 75(2) the children will live equally with the parties, the husband is a mere employee on a modest income, the wife admits that she has some additional working capacity;
The written submissions made on behalf of the wife were as follows:
G.Outline of argument:
Pool:
The wife contends that the court would find that the husband is still the owner of the 2 motor vehicles he says he has disposed of. Accordingly the court would accept the wife’s assessment of the pool.
Contributions:
The wife submits that the parties’ contributions were equal up until the time of separation. After separation the husband has withdrawn the financial support he had traditionally made available to the family and accordingly the wife’s contributions have increased. The court will assess contributions 55/45 the wife’s way.
75(2) Factors:
The court would accept that the husband continues a viable business he has been able to manage over the course of the marriage. The wife’s earning capacity has been compromised because of her traditional role in predominantly caring for the children. Indeed the way the parties have arranged their affairs was directed at the raising of children and the fostering of the husband’s business. The husband’s role in this continues to be quite valuable but the wife’s role will receive no monetary recognition. The husband has therefore better financial prospects than the wife and there should be a further adjustment of 15% in favour of the wife on this account.Effect of Orders contended for:
Property Husband Wife A1 $405,000.00 A2 $380,000.00 A3 $300,000.00 Wife’s motor vehicle $2,000.00 Household contents $3,500.00 $3,500.00 Mazda ute $800 Husband’s bank account $440 Contents of garages $198,000 Adjustment -$605,000 $605,000 TOTAL ASSETS $682740 $610,500 Mortgage $350,000.00 Wife’s Mastercard $11,000.00 Husband’s Mastercard $7,485 Land Tax TOTAL LIABILITIES $357,485 $11,000 NETT ASSETS $325,255 $599,500
The effect of the oral submissions for the wife was as follows:
· The wife should be preferred over the husband as a witness;
· The approach advanced by Mr B as the highest and best use of the real estate should be adopted with his opinion of the resultant value of the property. I am referred to GWR & VAR 2006 FamCA 894 and Smith 1991 FLC 92-281;
· For the purposes of identifying the net asset pool the mortgage should be taken as at the date of separation – February 2005 being $354,000, as the normal order of the parties’ arrangements had been that the husband paid the mortgage and he stopped at around separation. This makes the net value of the real estate about $716,000;
· The court should find that the husband owns the three H cars in dispute and they have a value of $118,000. The items were in the husband’s possession and the court would not be satisfied that with the husband’s evidence about him selling them or his disposal of possession since separation;
· The court should include both Mastercard debts from the calculation of net assets as there is no satisfactory evidence about how those debts came about or whether all or any of those debts was incurred during cohabitation;
· The school fees should be left for the husband and omitted from the joint debts as he was responsible for them;
· It is submitted that the net pool is $856,990;
· It is submitted that contributions were equal to separation and then the wife’s contribution was greater resulting in a 5% adjustment to her;
· The 15% adjustment on section 75(2) relies on the approach in Waters and Jurek. The husband has a valuable skill built up during the marriage and his earning capacity is far greater than that of the wife who had an interruption to her career with homemaking duties and is now reduced to part-time work and cobbling together additional hours.
· In reply the submissions for the wife are that the S contribution by the husband is $8,000 odd and not the ultimate sale price as direct and indirect contributions were made by the wife prior to the 1999 sale.;
· The husband cannot claim that the letter from his former solicitor (exhibit 2) was just a mistake.
The approach in proceedings under section 79
The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
The property of the parties at the date of the hearing
The Court is required to make a finding as to the property of the parties at the date of the hearing. There are circumstances which the Court has found in other cases, to have justified the inclusion of property that no longer exists, in the pool of property for settlement. Similarly the Court has sometimes found that debts that do exist should not be included in the list that goes to make up the net pool of assets. In In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30] To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b) Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c) In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
As to the arguments in this case:
The value of the A properties
The question raised on behalf of the husband is whether the appropriate method of valuation of A1, A2 and A3 is block by block valuation; development site valuation or some other method.
Mr B is the single expert. He provided valuations on two bases. Firstly as separate properties he puts the value of the three properties as follows:
A1$320,000
A2$270,000
A3$240,000
Secondly, he values the properties as a potential development. It is Mr B opinion that the greatest return on the sale of the properties would be achieved if a portion of the land at A1 (he suggests 714m2) was consolidated with A2 and A3 whereby 10 townhouses or units could be erected on the consolidated site. That he says would be the highest and best use and he puts the resultant value as follows:
A1$320,000
10 units @ $75,000 $750,000
During cross-examination Mr B was taken to the statement on page 3 of his original report of November 2005 in which he says:
“Developers are virtually non existent with the most recent identified sale of a site to a developer having taken place in Y Road in December 2004 for $650,000 which after subdividing a single block off the parcel converted to $72,500 per villa for the remainder.”
Allusion was made to the incidents of social disturbances at A in early 2005 and Mr B agreed that those incidents could have affected interest in development as could other factors such as the economic climate. Mr B did not know if there had been any developments since his original report and in any event could not comment on the real estate conditions in A since his updated report of February 2007. Mr B conceded that as at February 2007 the properties were more saleable as individual blocks than as a development.
Mr B was tested in relation to his evidence that since his first report in November 2005 there had been a drop in the value of A1, A2 and A3 of about 7% and 11% respectively but that there had been no drop in the value of A1. He did not resile from that opinion citing the better presentation of A1 and the fact that as an owner occupied property, it would tend to hold its value in a downturn better than properties such as A2 and A3 that had been rented out.
Mr B was cross-examined in relation to his opinion that would have A1 retain a value of $320,000 after 714m2 was removed and aggregated to the new development site. Again Mr B did not resile from that opinion saying that there would be no reduction in the amenity of A1 because of the development. He did concede that the occupiers of A1 would experience greater traffic if the development went ahead (because of the increased number of occupiers on the blocks). The thrust of his evidence was that there would be benefits to A1 by the removal of the present dwellings on A2 and A3 and the development would enhance the property or at least compensate for the loss of land.
The first issue is about the approach to be taken to the valuation of the properties. In GWR & VAR [2006) FamCA 894 before the Full Court there was expert evidence about the value of a property to be retained by the wife, both on a subdivided and unsubdivided basis. Because the wife was going to retain the property and had no intention of subdividing it, the trial judge preferred the lower, unsubdivided value. The Full Court rejected that reasoning and cited Spencer v Commonwealth (1907) 5 CLR 418 for the proposition that a property valuation should be based on the highest and best use of the property. The Full Court said at paragraph 54:
…
54.The principle of “highest and best use” finds repeated expression throughout the authorities relevant to the valuation of real property (see Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41; Housing Commission of New South Wales v San Sebastian Proprietary Limited & Others (1978) 140 CLR 196 and The Valuer-General v Fenton Nominees Proprietary Limited (1982) 150 CLR 160). The principle was succinctly stated by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65 at paragraphs 18 and 19:
The test of market value is well known. It is what the hypothetical purchaser desiring to purchase the land would have had to pay for it on the date of resumption to a hypothetical vendor willing to sell it for a fair price but not desirous to sell: Spencer v Commonwealth (1907) 5 CLR 418.
Regard must be had to every element of value which the lands possess. Every such element must be taken into consideration insofar as they increase the value to the owner of the land: Minister of State for Home Affairs v Rostron (1914) 18 CLR 634 at 637. In short, regard should be had to the highest and best use of the subject land, meaning the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential: Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415.
Mr B was not challenged in relation to his methodology. The thrust of the argument made on behalf of the husband is that there may be no developer willing to purchase the property and therefore the valuation based on a developed of the combined site is not reliable. In aid of that submission is the concession from Mr B that he is not aware of any similar developments in A in recent years.
Mr B did not resile from his opinion. The highest and best use is on the basis of a development of the three blocks. The difference between the two bases of valuation amounts to more than $200,000. That is a very significant sum in this case. I find that the properties are worth $1,070,000 on the basis of the highest and best use. In circumstances whereby neither of the parties wants to develop the properties, that necessitates a sale. The order for sale as a development will accommodate the best financial outcome for the parties. If that is not achieved within a reasonable time then A2 & A3 will be sold separately and if he wishes, the husband can retain A1 at the value fixed by Mr B for that property. Otherwise, A1 too will be sold.
Is the husband the owner of the business conducted by C P/L?
After hearing the evidence of the husband and of his sister Ms J, no submission was made on behalf of the wife to the effect that the husband is the owner of C Pty Limited. The husband has no financial interest in that business.
The 1972 HC
The evidence of the husband and of Mr L is consistent in parts. From some time in the 1980’s Mr L had expressed an interest in purchasing the vehicle. The husband says that at a certain point the parties had additional expenses including orthodontal treatment for J and fees of about $13,000 ($9,000 up front and the rest being paid off over time) for a college course for S. Mr L and the husband negotiated the price of $14,000 for the HC. The payments were made by instalments of $2,000 over a period. On the final payment on 23 February 2003 a receipt was drawn up and Mr L kept the original. The moneys were applied to various matrimonial debts. The husband delivered the HC to Mr L’s address some years after the purchase was completed. The car is now with Mr L.
There are many unsatisfactory aspects to the evidence about the sale of the HC. It is not clear that the motivation for the sale is as explained by the husband. One of the motivating factors identified by the husband was the cost of a course undertaken by S. The final payment for the car is said to have been made in February 2003. The payments were made over a period. The agreement for sale must therefore have been made in 2002 or earlier. It was put to the husband without correction or complaint that S finished at school in 2003 and undertook her course in 2004. In his affidavit of 1 March 2007 the husband says:
…
7.About two years ago but just before separation I paid $10,000 for [S] to do a Beautician’s course.
8.At the same time I paid $4,000 for [J’s] braces. She no longer needs them
Separation occurred in February 2005 so that suggests that the husband was saying that the payments were made in the period – late 2004 to early 2005.
A decision made in 2002 to sell a motor vehicle in order to meet the costs of a course which was undertaken in 2004 and of braces paid for in late 2004 to early 2005, involves a great deal of foresight.
Beyond that the husband and Mr L differ as to the detail. The husband says that he saw Mr L write out one of two receipts for cars. Mr L says that he did not and that he cannot read or write. The husband says that the HC was delivered to Mr L’s address in about October 2005, Mr L says in about June 2006. Their evidence about the reason for the removal of the car from the A premises is similar. The husband says he delivered the HC because Mr L did not want his car damaged by the wife. Mr L says that the husband told him that the car might be damaged by the wife. There is no explanation for the fact that two people who neither read nor write went to the trouble of recording in writing an agreement for a sale of a car at a price reflecting its condition but did nothing in relation to the asserted agreement that the husband would restore the car. In particular there is no evidence of the fact of or any agreement about a payment for the husband’s labour in restoring the car.
The evidence about this is entirely unsatisfactory. The wife is not able to give probative evidence one way or the other about the purported transfer of the vehicle. The husband’s case is not inherently improbable. The wife concedes that the husband often had and has items belonging to others at the A premises. The husband’s evidence about the motivation for selling the car is not entirely credible but he was not challenged in relation to the source of funds ultimately used to meet family costs including the costs of S’s course and J’s braces. As they differ in significant details, the husband and Mr L do not appear to have colluded to give false evidence. Mr L was not successfully challenged about his asserted ownership of the vehicle.
It falls to the wife to make the case that the HC is owned by the husband and she has not discharged the onus. I find that the HC is not part of the pool of matrimonial assets.
The 1955 H Sedan
It is the evidence of the husband and Mr L that the husband sold this vehicle to Mr L on 15 May 1999 for $8,000. The vehicle was transported to Mr L’s address on the same day as the HC referred to above.
There are similar problems in relation to the evidence of the husband and of
Mr L as is the case in relation to the HC. Again there is a written receipt evidencing a transaction between parties, neither of whom can read or write. Again, the husband saw Mr L write out either this receipt or the receipt for the HC and Mr L says he did not and could not. However neither the husband nor Mr L resiled from their written evidence. That evidence is not inherently improbable. The inconsistencies between the evidence of the husband and Mr L reduce the likelihood that they conspired at a false story. The wife is left with the forensic onus and has not discharged it. The 1955 two door H sedan will not be included in the pool of matrimonial assets.
The 1955 H pick up truck
The husband and Mr T both say that the husband learned of the truck which was in South Australia. The husband proposed to his then boss, Mr T, that he would like that truck bought for him to do up and use in the business as his company car instead of the Japanese manufactured car that Mr T has allocated to him. $3,000 was paid for the truck which was not a going concern, the vendor arranged to ship it to G and the husband collected it on a trailer.
The evidence of the husband and Mr T is slightly different in that the husband would have it that he paid for the truck and was reimbursed by Mr T and Mr T says that he provided the purchase price because the husband did not have the money to pay in the first instance.
The husband’s evidence is that the pickup was only a rolling chassis and that upon his sacking by Mr T after separation, a Mr X bought the truck from Mr T for about $2,000. He says that Mr X then asked him to keep the truck and do it up for him. Mr T corroborates the husband’s evidence on this issue.
I find that the pickup truck is not part of the pool of assets.
The value of those three H vehicles is in dispute
As I have found that the vehicles do not belong to the husband this issue does not arise. If it did arise then Mr B’s valuation would have been accepted. In those circumstances any shadow cast on valuations based on photographs, verbal descriptions and Mr B reference material would be swept aside if the husband owns the vehicle because he did not produce them or otherwise co-operate in the process of valuation. However, as I say, that issue does not arise.
The items alleged by him in paragraph 86 of his affidavit sworn 24.1.07, not to belong to the parties
Mr B valued the personalty at the former matrimonial home and in particular the contents of the husband’s sheds. In paragraph 86 of his primary affidavit the husband says that a number of specified items are not his and gives evidence about the real owners. During cross-examination it was put to the wife that the husband was correct and the wife agreed.
Learned counsel for the parties prepared a schedule of relevant items that became Exhibit 5. It is agreed that the husband will retain the items about which there is agreement as to both ownership and value.
There is no agreement about the ownership of item 29 – “42" inch shear press and slip roller”. On the basis of the husband’s evidence of the press and slip roller being owned by Mr T and the concession of the wife referred to above, I will exclude that item from the pool of assets.
According to exhibit 5 there is a dispute about the existence and value of four vehicle doors in the rear shed. I confess I do not really understand this. The exhibit shows the item as being “vehicle parts and panels including - 27 assorted rusted H doors” that Mr B valued at $2,700. Mr B report does not appear to separately identify four rusty doors at $400. The thrust of the evidence of the husband in cross-examination is that the doors belong to a car or cars that belong to the girls. There is no evidence to corroborate this from S or any other source. I will treat the 27 doors as property of the parties and at the value ascribed to them by Mr B. He was tested in relation to his opinion and did not resile from it and there is no other evidence of value. I will treat the doors in the same way as the parties agree should be the approach taken to items listed in exhibit 5 about which there is no dispute at to ownership but a dispute as to value. That is to say by sale and division of the proceeds.
According to exhibit 5 there is a dispute the ownership of 6 of 8 car stands valued at $400. Although the evidence is confusing, the effect of cross-examination and re-examination is that the husband says that 6 of the 8 axle stands in Shed 1 belong to Mr L. I accept the husband on this issue. Although there is some evidence to the effect that the stands are not all the same, in the absence of a principled basis for doing otherwise I will exclude 6 of the stands and reduce the value pro rata. Thus the matrimonial asset is 2 stands worth $100.
The husband agrees to take, at a valuation of $2,000, the item identified by Mr B as assorted parts and valued at $10,000. Mr B agreed during cross-examination that his valuation was an educated guess. He conceded that a valuation of $3,000 could also be correct. I do not have a record of Mr B conceding to a lower estimate. Nevertheless, and perhaps because he did not empty the relevant bin of parts and examine each one, on this item Mr B did allow that he had engaged in an arbitrary process. I will give the husband the opportunity to take those parts at $2,000.
Otherwise it is agreed between the parties that the items valued by Mr B, about which there is no dispute as to ownership but a dispute as to value, will be sold and the proceeds divided equally between the parties. I was not told about any agreed mechanism for that sale but perhaps the parties have something in mind.
The result of all this is that the husband will retain the following:
| Shed 1 | |
| Set of oxy acetylene with trolley, mask & gauge | 150.00 |
| Migoman 315 welder | 450.00 |
| 1 1/4 ton trolley jack | 100.00 |
| Abbot & Ashby 8" angle grinder/linisher | 100.00 |
| Unbranded 10cfm compressor | 180.00 |
| Visa-grip board of assorted vice grips | 200.00 |
| Assorted power tools - 9: grinder | 40.00 |
| - 2 sanding vibrators | 110.00 |
| - 1 x 7" sander | 40.00 |
| 1 x 4" bench mounted vice | 40.00 |
| 1 x 6" bench mounted vice | 140.00 |
| T&E flair tool kit | 20.00 |
| Sutton Gameflex hole screws | 75.00 |
| 1 socket set-metric imperial | 25.00 |
| Floor mounted body puller & chains | 250.00 |
| Approx 160 parts bins | 200.00 |
| 14' aluminium ladder | 180.00 |
| Schwank burner heat lamp | 100.00 |
| Lamp & leads | 50.00 |
| Brown paper masking roller | 60.00 |
| Steel 2-door locker | 20.00 |
| Workshop creeper | 5.00 |
| Fuson 12 speed pedestal drill | 250.00 |
| Offset vice | 90.00 |
| Castol APXT grease gun & pump | 150.00 |
| Approx 10 electric leads varying lengths | 200.00 |
| Total | $3,225 |
Shed 2 1/2 size billiard table with string pockets 2,000.00 1 old refrigerator 25.00 1 old poker machine 50.00 1 cordon bleu BBQ & trolley 750.00 Pedestal fan 30.00 Workshop trolley 25.00 Portable tool box & trolley with parts drawers 100.00 Purpose built stainless steel child support frame 100.00 1955 [H car] — Rolling body-no engine or transmission 3,000.00 Hafco metalmastser vertical mill no 1 1,000.00 Home made body rotisserie 400.00 Assorted tools contained within tool box 500.00 3 antique restored petrol bowsers 2,000.00 Falcon 12 Volt compressor 500.00 Total $10,480
Rear Shed
3. approx 12 [H] doors
800.00
4. approx 14 [H] guards 1,200.00 5. 1955 tray for [H] pick up truck 500.00 Total $2,500
| MOTOR VEHICLE | |
| Holden Statesman | 3000.00 |
| ASSORTED TRAILERS | |
| Twin axle steel box trailer short V bar unregistered | 400.00 |
| Twin axle road registered car trailer | 900.00 |
| Tri-axle unfinished gooseneck trailer | 3000.00 |
| $7,300 |
I will describe those items as “personalty valued by Mr B to be retained by the husband” and at a total value of $23,865.
The following will be included in the list of assets but in accordance with an agreement between the parties, will be sold and the proceeds equally divided between them.
| Shed 1 - Value not agreed | |
| Molnar mF 1705-85A-2 '/2 ton 2 post hoist | 2,200.00 |
| Assorted power tools - 5 electric hand drills | 200.00 |
| - 2 x 4" grinders | 70.00 |
| - 1 set Verniers | 50.00 |
| 5 spray guns | 250.00 |
| Wall mounted peg board with 50 pieces hand tools | 500.00 |
| Airmaster pedestal fan | 30.00 |
| 8" bench grinder | 90.00 |
| 6.3m steel wall mounted shelf units | 700.00 |
| 2 axle stands | 100.00 |
| 6 drying frames | 300.00 |
| Home made hydraulic pulley | 300.00 |
| Total | $4,790 |
Vehicle parts & panels including 27 assorted rusted [H] doors” valued at $2,700
I will describe those items as “personalty valued by Mr B to be sold and the proceeds equally divided” and at a total value of $7,490.
Household contents
I was informed by counsel that the parties have agreed in relation to the division or disposition of household contents and I am to leave them out of the pool.
On the basis of those findings, the assets of the parties are:
Assets Value A1, A2 and A3 properties $1,070,000 Commonwealth Bank, RB (H) $440 1995 Mazda utility (H) $800 A Superannuation (H) $19,878 Funds held on trust by husband’s solicitors (H) $22,000 Personalty valued by Mr B and to be retained by the husband $23,865 The item identified by Mr B as “assorted unidentifiable parts” to be retained by the husband $2,000 Personalty valued by Mr B to be sold and the proceeds equally divided $7,490 Wife’s jewellery $4,500 1988 Mitsubishi Colt (W) $2,000 Q Superannuation (W) $11,000 Total $1,163,973.00
Liabilities:
As to the disputed issues:
Mortgage balance
The mortgage balance is referred to at $358,000 and I think I was told that it is agreed at $362,000. It is not important to resolve this issue because the parties intend that it be paid out. However, it is submitted on behalf of the wife that the mortgage should be included at only $350,000 because it was the husband’s responsibility to make the payments and he did not make some payments after separation. I will include the balance at $362,000. The question of non-payment of the mortgage instalments is best left to an argument about contributions.
Loan to the husband’s sister
In his Financial Statement of 20 June 2007 the husband says that he owes his sister $47,200. She confirms that evidence. In addition, she lent him a further $15,000 on 21 June 2007 for legal fees. This evidence was not challenged. Thus the husband owes his sister $62,200. The husband says that most of the moneys were spent on legal fees for these proceedings. Moneys borrowed for legal fees would only be allowed as a relevant liability if the paid legal fees were read back in as a notional asset. I will exclude both the payment of legal fees and the related borrowings.
The only remaining issue is the approximately $12,000 of the moneys borrowed from his sister that the husband says were applied to family bills, including payment of food, payments of credit cards and necessary living expenses. Elsewhere he says that his sister helped with mortgage payments. This was the husband’s evidence. He was not challenged on it. However, the husband paid a few thousand dollars (less than $5,000, says his sister) towards the equipment for the factory unit premises from which C P/L trades. In cross-examination the husband’s sister said that payment will be set off against her brother’s debt. I will do the same. The husband has the onus to put this evidence before the Court and he did not. One option would be to make no finding about the debt but to take the fact of a debt into account in a more general way. Doing the best I can on the basis of admissions made in the husband’s case against interest, I will set off $4,900 (being an amount less than $5,000) against the $12,000 debt. Therefore I will include in the list of relevant liabilities the husband’s debt to his sister of $7,100.
Parties’ credit card balances
The wife owes $7,485 on her credit card. The husband owes $11,000. There is no evidence about the uses to which the cards were put or the balances on the cards as at the date of separation in February 2005. I will exclude the credit card debts from the list of relevant liabilities.
Capital Gains Tax
It is asserted there will be Capital Gains Tax payable on the sale of number A1 in the sum of $20,000. It is agreed that A2 and A3 will be sold. It is not necessary to be entirely accurate about the amount of tax as it will crystallise on the sale and will be paid from the proceeds of sale.
School fees
The parties owe $10,391 to P College in relation to tuition for J and T for Years 12 & 10 respectively and other fees. The wife submits that the husband should be responsible for the fees. I gather that the submission is that, during the marriage the husband paid the fees and he should continue to be responsible for them. The fees are properly a joint debt. They should be included in the list of liabilities. A decision about the parties being responsible for a debt related to a child, whether past or future, in some particular proportion is really a matter for child support. I will simply treat the debt as a joint liability.
Legal fees
The husband has incurred legal fees of $27,476.20 and it was estimated that he would owe a further $20,000 to the conclusion of the hearing. In fact the evidence is that he ultimately borrowed $50,200 from his sister and that amount was applied to his legal fees. The wife incurred fees of $30,200 as at 13 June 2007 and it was estimated that the total fees, including counsel’s fees to the conclusion of the hearing would be $45,000. The parties’ legal fees are not relevant liabilities for the calculation of the net pool of assets.
I find that the relevant liabilities of the parties as at the date of the hearing are as follows:
Liabilities Amount Mortgage secured on the A properties $362,000.00 Capital Gains Tax $20,000.00 School fees arrears $10,391.00 Loan to husband’s sister $7,100.00 $399,491.00
The net assets have a value of $764,482 ($1,163,973 - $399,491).
Financial Resources
The husband has had financial assistance from his sister. She bought, equipped and runs a business for the express purpose of providing a secure income for the husband. She has lent the husband over $60,000 for legal fees and living costs. There is no evidence of her financial circumstances save that she is employed as a Senior Business Manager and she owns a home which secures a line of credit that was drawn on as to about $300,000 to buy the factory unit. She paid for the business equipment although she obtained some money that another brother owed her and borrowed a further $27,000 from Mr K, a friend of the husband. There is no evidence as to the scope for or likelihood of further assistance to the husband from his sister.
There is no evidence that the wife has any other financial resources.
Contributions
The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
A separate pool for superannuation
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should assess contributions asset by asset or globally, the authorities have it that the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court opined that it is preferable for contributions to superannuation to be assessed separately from those made to other assets. However the Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the parties have themselves adopted a global approach to the assessment of contributions. On that basis and because the superannuation is a relatively small value in the context of the pool in these proceedings, I will employ a global approach.
Contributions
Section 79(4)(a) Contributions
The wife brought into the marriage the land at number A1. She had bought the property in August 1986 and applied $3,000 being the sale proceeds of a Holden Torana motor vehicle and savings of $13,880.56 to the purchase. She borrowed $20,000 by way of mortgage to complete the purchase. In December of 1986 she received $9,578.98 by way of compensation arising from a motor vehicle accident.
The husband brought the following into the marriage:
A property at S NSW purchased with $8,000 of savings in April 1985 for a total price of $45,000. The property was rented out and the rent met the bulk of the mortgage instalments. The property was sold for a net $75,360.69 in January 1999.
$35,000 in the form of an insurance payout on an International Truck. That money was applied to discharge the mortgage on the land at A1 in late 1986;
A Holden Statesman limousine that the parties used for their wedding and sold for about $19,000 which was applied to the construction costs at number A1;
A Harley Davison motor cycle that was sold for $13,300 and the proceeds applied to the purchase of roof tiles for the house and shed at number A1;
Two Holden Commodore motor vehicles that were sold for amounts that do not appear in the evidence but the proceeds were applied to materials and to pay contractors working on the improvements to the A property;
The husband says that he paid $2,000 for the deposit on the land at A1. The wife’s evidence is silent on that question. Neither of the parties was cross-examined on the issue. Little turns on it.
In addition the parties had joint savings, having been boyfriend and girlfriend for seven years before the marriage. The wife says the savings were about $5,000 and the husband says $11,000 at the date of the marriage. Nothing turns on the resolution of that dispute.
The wife worked as a sandwich hand as at the date of the marriage and ceased paid employment upon the birth of S. She then had paid employment on a part-time basis from 1998. She worked on a shift basis, first between 8pm and 12 midnight for three or four nights a week and later on the morning shift from 3am to 9am. The hours were designed around the children and the move to morning shift was to accommodate the children attending school. Of recent years she has worked for a retail chain as a part-time Ordering Officer.
The husband had a combination of employment, working for wages in various capacities, working in transportation and for a period, running a small business. In addition, before, during and since cohabitation he restored motor vehicles for others and himself. The wife says that the husband generally worked from 6 am and returned home between 4 pm and 5 pm. She says that he spent most evenings in the shed working on vehicles.
During the marriage the husband sold:
A truck for $40,000 and applied that to the deposit on number A2 property;
A 1955 H for $35,000
A white stretch limousine for $20,000;
a black stretch limousine for $6,000;
a 1959 vehicle for $20,000 ; and
a Holden utility for $21,000.
The proceeds of the sale of the cars and utility were received in or after 2003 and were applied to the mortgage which was paid out in December 2004. It is not possible to assess the net benefit of the sale of those vehicles without knowing the cost of obtaining the vehicles and the cost of parts and any labour paid for by the husband in relation to the restoration of each.
In the final years of the marriage the husband worked for Mr T. He joined that company in 2002 and was dismissed by it in about June 2006. The husband says that he was under stress as a result of the end of the marriage and had injured a hand. From September 2006 the husband has worked as a tradesman in his sister’s business.
The wife’s brother and sister-in-law gave her $2,100 to purchase her motor vehicle.
The wife is very critical of the husband’s lack of financial contribution after separation. The husband says that in the latter period his ability to contribution was adversely affected by his reaction to the breakdown of the marriage and his termination by Mr T. The husband in turn is critical of the wife’s interference with his renovation activities at the former matrimonial home which in turn lead to him moving that work elsewhere.
The financial contributions made by the husband and on his behalf exceeded those by and on behalf of the wife.
Section 79(4)(b) contributions
The husband deposes to undertaking the tiling for the A home, cleaning bricks, assisting the Plasterer with Gyprock, working as tradesman and preparing some of the formwork for concrete. Over and above his paid restoration work, to the extent that the husband restored motor vehicles for the use of the family, the husband made a non-financial contribution by that activity.
The wife washed grout off the internal walls of the matrimonial home and painted and stained the woodwork in the house, inside and out and on several occasions over the years. She assisted with the construction of retaining walls by carrying bricks and pavers, painted the pergola and planted shrubs and trees. Between tenants she cleaned the rental properties and maintained the grounds of the rented properties.
Before they could move into the former matrimonial home the parties lived with the wife’s brother, then the husband’s sister and then lived apart with their respective parents.
Each of the parties made non-financial contributions.
Section 79(4)(c) contributions
There are three children of the marriage.
The wife was responsible for all washing ironing and cooking, taking the children to and from school, attending doctors’ appointments, school functions, parent teacher nights and she cared for the children during holidays. She maintained the lawns and gardens and took the children to sporting activities such as soccer, karate and swimming.
The husband concedes the extent and quality of the wife’s contribution as parent and homemaker. At least, he makes that concession up to the date of separation. He says that he played with the children, bathed them and as they grew older, was their chauffeur.
It is likely that the wife’s contributions continued after separation although the husband is critical of what he sees as an interference by the wife with his relationship with the girls.
I am satisfied that the wife was the primary care giver of the children and the main homemaker. The time spent by the husband on his passion for the restoration of motor vehicles must have restricted his availability, out of work hours and on weekends, to assist with those roles.
Conclusion on Contribution
The husband argues that the parties’ contributions favour him in the proportions 60% to 40%. That is based on the imbalance of initial contributions. The wife argues that the contributions were equal to the date of separation and since then an imbalance of contributions in her favour warrants a finding overall 55% to 45% in her favour.
This is a long marriage. The husband’s initial contribution was greater than that of the wife. He brought in more than $75,000 in the form of equity in the S property and the proceeds of various motor vehicles. The wife brought in just under $26,500 in the form of equity in A1 and an insurance payout. Otherwise the parties contributed equally to the date of separation.
Each of the parties criticises the contributions made by the other since separation. They have each suffered greatly over the breakdown of the marriage. There were other events that may well have impacted on their contributions. Sadly, the wife’s brother died soon after separation. The husband was sacked from his job in the middle of 2006. The parties have been living under one roof, with their daughters, since February 2005. It is not possible translate the various complaints into a principled finding that would distinguish their contributions since separation.
The question then is the overall impact of the initial imbalance of financial contributions. My task is not a mathematical exercise and there is no concept of erosion of contributions made earlier in the marriage. I am to assess the respective contributions and to give them appropriate weight.
In my view some allowance is required for the imbalance of initial contributions. The impact at the time was to allow the parties to clear the mortgage on the land and to construct a home without further borrowings. That is a wonderful start to a marriage. Since then the parties have worked hard, in different ways, for 20 years. In my view an allowance of 2.5% to the husband would properly reflect the contributions. In the context of this case that would make a difference between the parties of about $38,000.
The other matters in Section 79
Dealing with the matters identified in the legislation:
Section 79(4) (d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no evidence about this. Given that he now has the use of the business premises it may be that the husband is not quite as dependent as he was on the sheds and other facilities at number A1 for his private restoration work. To the extent that he is dependent on those facilities, the sale and perhaps even the development, of that property may adversely affect his income.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (d), (m) and (o).
(a) the age and state of health of each of the parties;
First, as to the age and state of health of each of the parties. The husband is 46 years of age and the wife is 42. There is no relevant, probative evidence about their health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband receives $867 per week made up of $637 in wages as a Panel Beater for C Pty Ltd and rent from A2 of $230 per week. He lives with the wife and the parties’ children. He does not know their incomes. S works as a hairdresser. The husband’s fixed expenditure is as follows:
Expenditure
Amount
Income tax $100.00 Rates for number A1 $25.00 Mortgage payments to the St George Bank on A3 $600.00 Rates on A2 and A3 $40.00 Motor vehicle registration on Mazda Utility … . $19.00 Credit card payments on Mastercard $30.00 Payments to the parties daughters $80.00 General household and personal expenses $200.00 Total $1094.00
Included in the general weekly expenses of $200 is $15.00 per week paid by the husband for J’s car insurance. To some extent, not all of those outgoings have been paid. Evidence about his assets, liabilities and resources is set out earlier in these reasons.
As to his earning capacity, it is greater than the income he discloses for the purposes of these proceedings. His solicitor disclosed[4] his taxable income for 2002, 2003 & 2004 to be in excess of $50,000 per annum and his weekly income in 2005 to be $1,417.31. Those figures were affected by negative gearing on real estate and other losses. Albeit that some of his enterprises apparently traded at a loss, the husband has always earned money by restoring motor vehicles. He has bought vehicles for the purpose of restoration and sale, he has restored vehicles for others and he has restored vehicles for use, both private and business.
[4] exhibit 2
The husband’s sister owns the business that employs the husband. She expects that the business will commence to repay the set up costs.
The wife’s income is $400 per week by way of her salary as a part-time Ordering Officer for a supermarket. The wife lives with the husband and parties’ children. S earns about $600 per week, J about $100 and T about $40 per week.
The wife’s expenses are as follows:
Expense Amount Income tax $53.00 Rates $22.00 Home contents insurance $41.00 Motor vehicle registration – Mitsubishi Colt … $13.00 Payments on Commonwealth Bank Mastercard $80.00 Living expenses $389.00 Food $150.00 Petrol $40.00 Motor vehicle maintenance $20.00 Clothing and shoes $20.00 Childrens activities $13.00 Medical dental and optical $50.00 Entertainment and hobbies $45.00 Education expenses including school fees $3.00 Chemist pharmaceuticals $4.00 Gardening lawnmowing $3.00 Gifts $20.00 Hairdressing toiletries $5.00 Green slip / pocket money $16.00 $389.00 Total $598.00
Although not mentioned above, the wife also pays family membership in a health fund that covers herself and the children. The wife apportions the living expenses as to $165 for herself and $224 for the children. She concedes that many expenses are paid by the husband. Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
As to her earning capacity, one of the issues in the case is whether, in addition to her work with Coles, the wife is working for her sister. During cross-examination the wife conceded that she had worked in her sister’s shop, but not on a paid basis. She says that the shop opened in September 2006 and that she helped out around Christmas time. The last time she worked there was for a few hours on Mothers’ Day. The wife said that the reason she travels to her sister’s shop is to visit their mother. She rejected the proposition that she could obtain additional work at the shop, saying “it is too far”. It is part of the husband’s case that the wife has unexercised capacity for paid employment but there was no submission to the effect that additional paid employment is available to the wife at her sister’s shop. The wife wants to be available for the younger girls outside school hours but conceded that she has some small additional capacity for paid employment. She has not explored the question of obtaining additional hours where she works, nor has she looked for other employment. The impression is that the wife has put her life on hold since separation. In that regard the wife referred to the fact that her brother was killed one week after separation.
The wife does not work with her sister. The wife probably has a greater earning capacity that she currently exercises.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
J and T each attend P College in Years 12 and 10 respectively. As I understand it the parties anticipate that the children will live with them on an equal basis. Given their ages that is likely to be a decision made in discussion with the children.
(d) commitments of each of the parties that are necessary to enable the party to support:
himself or herself; and
a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out the detail of those commitments above. The parties are likely to have another two years of school fees for T
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,and the rate of any such pension, allowance or benefit being paid to either party;
The parties have been able to generate only modest superannuation entitlements. Neither of the parties seeks a splitting order.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is little evidence in relation to the standard of living of the parties during the marriage. Each of the children of the marriage attended at a non-government school but otherwise there is no evidence of the parties living an affluent lifestyle.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
In 2000 the husband completed his trade qualification as a tradesman through M TAFE. The wife gives evidence that his studies meant extra work for her. Despite skills of the highest order acquired at a very early age and developed over many years, having a trade qualification must make the husband more employable. Presumably, that is why he went to the trouble, after all those years of doing the course.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
The orders will put each of the parties in funds. That will allow them to pay debts.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The wife’s role at home and with the children has allowed the husband to maintain full-time employed positions, run businesses and devote time out of hours to his valuable hobby and passion.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The wife gave up paid employment for 10 years and since returning to it in 1998 has only had part-time work, including shift work to accommodate the needs of the children. It is likely that the marriage adversely affected her earning capacity. She was denied the opportunities that come with permanent employment including the building of skills and experience that can lead to better paid employment and the other benefits of employment such as leave and superannuation.
(l) the need to protect a party who wishes to continue that party's role as a parent;
The wife believes that her income earning capacity will continue to be adversely affected for a period of time. She wants to be available to J and T. T is half way through Year 10.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
The parties live together and there is some sharing of expenses. It is not likely that they will continue to live together indefinitely.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
The husband does not pay and the wife does not receive child support.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
There is nothing further requiring attention under this provision.
(p) the terms of any financial agreement that is binding on the parties.
There was no binding agreement made between the parties.
Section 79(4)(f)
There are no relevant orders.
Section 79(4)(g)
There is no child support assessment.
Conclusion
The wife argues for a 15% adjustment for the “other matters” referred to above and the husband argues that there should be none. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
Ø The wife is 4 years younger than the husband;
Ø The wife’s income and income earning capacity are significantly less than those of the husband. The husband’s sister bought and equipped a business to be a vehicle for his income. The husband continues to possess the skills that can generate additional income, the skills that allowed him to contribute funds from the restoration of cars prior to and throughout the marriage. The wife’s capacity to work is limited by the extent and type of work she had during the marriage and for two years she may still have a child at High School. When able to commit to full-time employment, if she can secure it, she cannot aspire to the sort of income (over $50,000 per annum) that the husband has enjoyed in the past;
Ø The adjustment based on contribution alone will favour the husband to the extent of about $38,000;
In my view there should be an adjustment to the wife by virtue of the other matters in section 79(4). It is often the case that a capacity for paid employment is one of the most valuable ‘assets’ of a marriage. Here, by hard work and dedication the husband has overcome restrictions on his capacities to read and write to make a wonderful contribution for the family. The restrictions persist but he did not even allow them to deny him the formal qualifications that mean he can be properly rewarded for his skills. He is employed by his sister. It is not possible or appropriate to properly compensate the wife for the likely future financial impact of the difference in the parties’ earning capacities. However, doing the best I can, I will make an adjustment to the wife of 5%. In the context of this case that makes a difference between the parties of the order of $76,000.
Just and Equitable
Based on their contributions and the other matters in s 79 the appropriate division of property is a division that is about 52.5% to the wife and 47.5% to the husband. Finally, I must consider whether it would be just and equitable within the context of s 79 if the net assets of the parties were divided in those proportions.
The net assets have a value of $764,482. The outcome of that division would be that the wife receives $401,353.05 and the husband $363,128.95.
The wife has or will under the parties proposals have, the benefit of:
Assets Value One half of the personalty valued by Mr B to be sold and the proceeds ($7,490 ÷ 2) $3,745 Wife’s jewellery $4,500 1988 Mitsubishi Colt (W) $2,000 Superannuation (W) $11,000 Minus one half of the arrears of school fees ($10,391.00 ÷ 2) -$5,195.50 Total $16,049.50
In order to bring her to 52.5% she would need to receive a further $385,303.55 from the remaining net assets. She would owe her credit card debt and the legal fees for these proceedings.
That would leave the husband with the benefit of:
Assets Value Commonwealth Bank, RB (H) $440 1995 Mazda utility (H) $800 Superannuation (H) $19,878 Funds held on trust by husband’s solicitors (H) $22,000 Personalty valued by Mr B and to be retained by the husband $23,865 The item identified by Mr B as “assorted unidentifiable parts” to be retained by the husband $2,000 One half of the personalty valued by Mr B to be sold and the proceeds ($7,490 ÷ 2) $3,745 Minus loan to husband’s sister -$7,100.00 Minus one half of the arrears of school fees ($10,391.00 ÷ 2) -$5,195.50 Total $60,432.50
In order to bring him to 47.5% he would need to receive a further $302,696.45 from the remaining net assets. He will owe his credit card debt.
Conclusion under Section 79
The effect of the orders will be to market the A properties as a development and if successful, to divide the net proceeds between the wife and husband, after the payment of the costs of sale, the mortgage and any tax payable, in a proportion that reflects the approximate ratio 385,303.55: 302,696.45. I will round out that ratio at 56% to the wife and 44% to the husband. By dealing with that division in terms of percentage the parties will share the benefit or detriment of any difference between the ultimate net sale proceeds and the values arrived at for the purposes of these proceedings. The parties will otherwise retain what they have. In my view the outcome I have foreshadowed would be just and equitable pursuant to s 79.
As I have set out above, I have accepted Mr B’s valuation of the A properties as a development site at $1,070,000. In circumstances whereby neither of the parties wants to undertake that development and neither of the parties wants to retain A2 or A3, the achievement of any value necessitates a sale. Firstly, the site will be offered for sale by development. As was discussed at some length during cross-examination of Mr B, there is a possibility that there is no market for the development site. The tension in relation to the timing of the sales program is between my obligation to bring an end to the financial relationship of the parties and ending the present misery of cohabitation and achieving the best financial outcome for them. In my view three months is a proper period. Of course the parties can agree on some other period. If the properties do not sell on that basis within three months then they will be offered for sale separately except that the husband may then elect to retain number A1 at the value of $320,000. There will be a payment between the parties or a distribution of the net proceeds of sale so as to effect a division of the resultant net value of the properties in the proportions 56% to the wife and 44% to the husband.
The orders to give effect to that approach and to the parties’ agreements about personalty are necessarily complicated. I will suspend the operation of the orders until 29 August 2007 to give the parties the opportunity to bring the matter back before me to resolve any drafting problems or practical issues.
I certify that the preceding one husband and sixty five (165) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.
Associate:
Date: 25 July 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CARBONARO & CARBONARO
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Property Law
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