Casper and Casper - [2009] FamCA 989

FAMILY COURT OF AUSTRALIA

CASPER & CASPER

[2009] FamCA 989

FAMILY LAW – PROPERTY – farming enterprise – operated out of a family trust – significant contribution by the husband of assets held by him prior to the marriage – husband and wife each allege waste of moneys – husband seeking to retain farming property

Family Law Act 1975 (Cth)

APPLICANT:

Ms Casper

RESPONDENT:

Mr Casper

FILE NUMBER:

SYC

4466

2007

DATE DELIVERED:

15 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

14-15 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

Orders

The husband pay to the wife the sum of $1,719,339.35 in the following manner:
(a) As to the sum of $1,395,000 within 30 days of the date of these orders;
(b)As to the sum of $324,339.35 on or before the expiration of the anniversary of the date of the making of these orders; and
(c)Any amount due hereunder shall, as from 30 days from the date of these orders, bear interest at the rate of 5% per annum from that date to the date of repayment of the said sum in full. Interest is to be paid monthly in arrears on so much of the principal sum as is outstanding from time to time. In the event that interest remains unpaid for more than three months then the whole of the balance outstanding hereunder shall immediately upon notice in writing given by the wife to the husband become due and payable.
Simultaneously with the payment of the sum referred to in Order 1(a) the wife is to do all such acts and things as may necessary to transfer to the husband all her right, title and interest in and to the following:
(a)The property known as B Farm in the State of New South Wales, being a property of about 1,201.62 hectares being the property contained in Lot … in DP …; Lots … in DP …; Lots … in DP … and Lot … in DP …;
(b)The property known as A Farm in the State of New South Wales, being a property of about 2.617 hectares contained in Lot … DP …;
(c)The shares jointly owned by the parties, namely the AWB shares, Westfarmers shares, Telstra shares and News Corp shares; and
(d)Any equity the wife has in the produce stores.
The husband, in order to provide security for the payment of his obligations for payment to the wife of the sum in Order 1 above to be paid, or so much thereof as is outstanding from time to time, will charge in favour of the wife all his right, title and interest in and to A Farm and B Farm, provided however that such charge shall rank second in priority to existing charges on the said properties and any further advances made for the purpose of expenses incurred in the ordinary course of the business conducted by the husband on B…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Casper and Casper

Details

AGLC: Casper and Casper [2009] FamCA 989
Case: [2009] FamCA 989
Decision Date: 15 October 2009

CaseChat Overview and Summary

In *Casper and Casper*, heard before Justice Fowler, the court was tasked with determining the property settlement between a husband and wife. The dispute centred on the division of significant assets, including farms, shares, and interests in a trust, and the financial obligations each party would bear following their separation.

The legal issues before the court included the quantum of the financial settlement to be paid by the husband to the wife, the method and timing of such payment, and the transfer of various property interests between the parties. The court also had to consider the provision of security for the husband's payment obligations, the consequences of default, and the discharge of certain trust arrangements and associated liabilities.

Justice Fowler ordered the husband to pay the wife a substantial sum, with a significant portion due within 30 days and the remainder by the first anniversary of the orders, with provision for interest. In return, the wife was to transfer her interests in specified farms, jointly owned shares, and produce store equity to the husband. The husband was required to provide security over the farms for the outstanding amount, subject to existing charges and further advances for farm expenses. The orders also stipulated the process for the sale of the farms in the event of the husband's default, the discharge of a previous order allowing the wife to draw funds from a trust, and the wife's resignation from the trust, with the husband indemnifying her against liabilities. Each party was otherwise to retain their existing property.

Orders

Orders of the court

The husband pay to the wife the sum of $1,719,339.35 in the following manner:

(a) As to the sum of $1,395,000 within 30 days of the date of these orders;

(b) As to the sum of $324,339.35 on or before the expiration of the anniversary of the date of the making of these orders; and

(c) Any amount due hereunder shall, as from 30 days from the date of these orders, bear interest at the rate of 5% per annum from that date to the date of repayment of the said sum in full. Interest is to be paid monthly in arrears on so much of the principal sum as is outstanding from time to time. In the event that interest remains unpaid for more than three months then the whole of the balance outstanding hereunder shall immediately upon notice in writing given by the wife to the husband become due and payable.

Simultaneously with the payment of the sum referred to in Order 1(a) the wife is to do all such acts and things as may necessary to transfer to the husband all her right, title and interest in and to the following:

(a) The property known as B Farm in the State of New South Wales, being a property of about 1,201.62 hectares being the property contained in Lot … in DP …; Lots … in DP …; Lots … in DP … and Lot … in DP …;

(b) The property known as A Farm in the State of New South Wales, being a property of about 2.617 hectares contained in Lot … DP …;

(c) The shares jointly owned by the parties, namely the AWB shares, Westfarmers shares, Telstra shares and News Corp shares; and

(d) Any equity the wife has in the produce stores.

The husband, in order to provide security for the payment of his obligations for payment to the wife of the sum in Order 1 above to be paid, or so much thereof as is outstanding from time to time, will charge in favour of the wife all his right, title and interest in and to A Farm and B Farm, provided however that such charge shall rank second in priority to existing charges on the said properties and any further advances made for the purpose of expenses incurred in the ordinary course of the business conducted by the husband on B Farm, including but not limited to Seasonal advances for the purpose of his primary production on B Farm.

In the event of default in payment pursuant to Order 1 hereof, and such default continuing for more than three calendar months, the husband shall do all such things and execute all such documents as may be necessary to procure the sale of A Farm and B Farm in that order for the best price reasonably obtainable therefore and shall apply the proceeds of sale in the manner and priority following:

(a) In payment of agents commission and selling costs including the legal costs and disbursements of and incidental to the sale;

(b) In payment of the amount charged on the said property including the amount due to the wife hereunder; and

Order 2(i) made by consent and set out under Order 8 of the Orders of

5 September 2007 permitting the wife to obtain $3,000 per month from an account in the name of the B Farm Trust, is discharged up and to the date to which it stands paid.

The wife forthwith sign all documents and do all things necessary to transfer to the husband all of her right, title and interest in, any loan account in, the B Farm Trust and resign from all positions she holds in the Trust.

Upon compliance with Order 6 above the husband shall indemnify the wife and keep the wife indemnified in respect of any liabilities of and in relation to any action, claim or demand of the Trust, whenever they were incurred and including any taxation liability.

Unless specified in these orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these orders.

If either party refuses or neglects to sign within fourteen (14) days of a written request to do so any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

10.

Any application for costs be filed an served within 28 days of the Orders herein made, and subject to the following:

(a) any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application;

(b)

any respondent to a costs application must file within a further

14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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