Chaplin and Chaplin

[2014] FCCA 72

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPLIN & CHAPLIN [2014] FCCA 72

Catchwords:
FAMILY LAW – Property – significant matrimonial asset pool of $4,200,000.00 – husband argues 55 per cent of the parties’ asset were gifted to them by the husband’s father and as such the husband should receive 70 per cent of the pool – wife argues her contributions to the marriage as the primary carer for the parties seven children and the parties’ improvements and renovations to the properties gifted to them equalises the parties’ contributions such that the asset pool should be divided equally between the parties – orders made for the parties’ assets to be divided on a 42.5/57.5 basis in the husband’s favour.

Legislation:

Family Law Act 1975, ss.75, 79

Pierce & Pierce (1999) FLC 92-844
In the marriage of Brown [2005] FamCA 389
Stanford v Stanford [2012] HCA 52

Applicant: MR CHAPLIN

Respondent: MS CHAPLIN

File Number: MLC 9673 of 2012

Judgment of: Judge Bender

Hearing date: 28 November 2013

Date of Last Submission: 28 November 2013

Delivered at: Melbourne

Delivered on: 22 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Dixon of Senior Counsel

Solicitors for the Applicant: J A Middlemis

Counsel for the Respondent: Ms Jenkins

Solicitors for the Respondent: Ken Smith & Associates

ORDERS

1. The Husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right, title and interest in the real property situate at and known as:

   (a)Property A (Volume [omitted]);

   (b)Property B (Volume [omitted]);

   (c)Property C (Volume [omitted]);

   (d)Property D (Volume [omitted]); and

   (e)Property E (Volume [omitted])

   (“the properties retained by the wife”).

2. The Wife indemnify the Husband against all mortgages and rates, taxes and outgoings of or with respect to the properties retained by the wife of whatsoever nature and kind, save as provided for in order 7(b) herein.

3. That the Wife forthwith do all necessary acts and things and sign all necessary documents to transfer to the Husband at the expense of the Husband all her right, title and interest in:

   (a)“Property F” (Volume [omitted]);

   (b)Property G (Volume [omitted]);

(c)“Property H Parcel”, “Property I Parcel” and “Property J Parcel” (Volume [omitted]);

(d)Property K (Volume [omitted]);

(e)Property L (Volume [omitted]);

(f)Property M (Volume [omitted]));

(g)Property N ([omitted]);

(h)Property O (Volume [omitted]);

(i)Property P, (Volume [omitted]);

(j)“Property Q” (Volume [omitted]);

(k)“Property R” (Volume [omitted]); and

(l)100 acres at Property S (Certificate of Title Folio [omitted]);

(“the properties retained by the husband”).

1. The Husband indemnify the Wife against all rates, taxes and outgoings of or with respect to the properties retained by the husband of whatsoever nature and kind.

2. The Husband pay to the Wife the sum of $464,253.40 (“the payment”) on or before 22 April 2014 (“the date”);

3. Contemporaneously with the payment:

   (a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as, Property T (Volume [omitted]) (“Property T”);

   (b)the wife discharge or refinance into her sole name the mortgage over the property at Property E; and

   (c)the Husband indemnify the Wife in respect of all rates, taxes and outgoings of or with respect to Property T of whatsoever nature and kind.

4. In the event that the whole of the payment has not been made by the date:

   (a)the parties sign all documents and do all things necessary to place Property T on the market for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (i)firstly to pay all costs, commissions and expenses of the sale;

   (ii)secondly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Wife;

   (iii)thirdly the balance to the Husband;

   (b)the husband pay the mortgage registered against the property at Property E from the date to the payment.

5. Pending the payment or completion of the sale:

   (a)the Husband have the sole right to occupy Property T and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of Property T as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)neither party encumber the real property without the consent in writing of the other party.

6. The husband retain to the exclusion of the wife all of the farm plant and equipment detailed in the valuation prepared for the parties by Countrywide Valuers and that the wife sign all documents and do all things necessary to transfer such farm plant and equipment to the husband.

7. The wife retain to the exclusion of the husband her antique collection and antique trading stock.

8. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

   (b)insurance policies remain the sole property of the owner named therein; and

   (c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS NOTED that publication of this judgment under the pseudonym Chaplin & Chaplin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BENDIGO

MLC 9673 of 2012

MR CHAPLIN

Applicant

And

MS CHAPLIN

Respondent

REASONS FOR JUDGMENT

1. This matter relates to the adjustment of property between the parties following the breakdown of their long marriage of nearly 30 years.

2. The husband is seeking orders that the parties assets be divided such that he receive 70 per cent of those assets on the basis that 55 per cent of the parties’ assets were gifted to them by the husband’s father.

3. The wife is seeking orders that the parties’ assets be divided equally.  Whilst conceding that the husband’s father gifted the parties considerable real estate over the course of the marriage, the wife argues that her contributions during the long marriage, including the improvements effected on four of the gifted properties undertaken by the parties during the marriage and her role as the primary carer of the parties’ seven children is such that the parties’ contributions should be considered as equal.

Background

1. There is little factual dispute between the parties and the matter proceeded at the final hearing on the basis of submissions only.

1. The husband was born [in] 1961 and is 53 years of age.  The husband is employed as a [omitted].  The husband earns approximately $72,000.00 per annum.  The husband has not repartnered.

2. The wife was born [in] 1962 and is 51 years of age.  The wife is employed on a part-time basis in [omitted].  The wife also receives rental from investment properties acquired during the marriage.  The wife’s weekly income is $583.00.

3. The parties have seven children. The eldest six children are over 18 years of age and are living independently.  The parties’ youngest child [X] born [in] 2001 (“[X]”) is in Year 7.  [X] lives with the wife and spends Friday and Saturday nights with the husband.

4. At the commencement of cohabitation neither party owned any assets of significance.

5. In 1982 the husband’s father gifted the parties the property at Property A, (“Property A”).  The parties, with the assistance of the wife’s father, built a home on this property and this was the parties’ first home.

6. In or around 1985 the parties were gifted 8 acres with a derelict home on it by the husband’s father at Property B, (“Property B”).  The parties extensively renovated this property and it became the matrimonial home.

7. In or around 2000 the husband’s father gifted the parties land comprising approximately 500 acres.  This land is contained on many titles. 

8. In paragraph 11 of the husband’s affidavit filed 19 October 2012 he deposes as follows:

   11.In or about 2000 my father (I believe in recognition of my many years of low paid work with him and his desire to advance me) gifted us land comprising approximately 500 acres.

1. Subsequent to the transfer of the land referred to in paragraph 11 herein, the parties moved a home onto the block at Property C, (“Property C”).  This home was renovated and is now tenanted.

2. In 2006-2007 the parties built a new sandstone home on the property at Property T, (“Property T”), being one of the blocks gifted by the husband’s father in 2000.  The parties moved into Property T in 2007.  At separation the husband remained at Property T and the wife moved back to Property B.

3. From the monies received by the wife from an out of court settlement of a malpractice case, the parties purchased shop premises at

   
   

   Property D(“the shop premises”) for $80,000.00.  The shop premises are currently tenanted.

4. During the marriage, the parties purchased 100 acres at Property S, (“the Property S property”).

5. The parties also purchased a beach house at Property E, (“the Property E property”).  The Property E property is encumbered by a mortgage of $130,000.00.  The Property E property is currently untenanted and the wife services the mortgage from rental monies received from the parties’ other tenanted properties.

The issues

1. As noted, the parties are in agreement as to the facts in this matter and also have agreed as to what constitutes and is the value of the matrimonial pool of assets to be divided between them.  The parties have also agreed as to which pieces of real estate each of them is to retain.

2. The issues between the parties are as follows:

   a)What, if any, adjustment should be made in the husband’s favour arising from the properties gifted to the parties by the husband’s father?

   b)In the event the husband is required to make a cash payment to the wife in addition to the properties being retained by her, should the husband be given six months to pay the wife, as is the husband’s proposal, or should Property T be forthwith placed on the market for sale and the wife receive the monies payable to her from the proceeds of sale, as is the wife’s proposal.

The legislation

1. Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:

   The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.

2. Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)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.

3. The matters to be taken into account under section 75(2) of the Act are as follows:

   (a)the age and state of health of each of the parties; and

   (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; and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)commitments of each of the parties that are necessary to enable the party to support:

   (i)     himself or herself; and

   (ii)    a child or another person that the party has a duty to maintain; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)         any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)    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; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (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; and

   (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; and

   (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; and

   (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; and

   (l)the need to protect a party who wishes to continue that party's role as a parent; and

   (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)     the property of the parties; or

   (ii)    vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)     a party to the marriage; or

   (ii)    a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)   the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)   vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (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

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

4. The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that it is just and equitable that the Court make such orders. 

5. The High Court in Stanford held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.

6. This is such a matter, and thus it is very apparent that it is just and equitable that orders be made adjusting property matters between the parties. 

7. Having determined it is just and equitable to make orders adjusting property matters between the parties, the way forward to ascertain what orders are to be made is clearly set out in the Act. Firstly, the Court must determine the parties’ assets and liabilities, secondly the Court must look at the parties’ contributions in accordance with section 79(4) of the Act and then consider the relevant factors under section 75(2) of the Act. Having undertaken this process the Court must, I believe, be satisfied that the outcome is fair, or to use the old parlance, just and equitable as between the parties.

Assets and Liabilities

1. As previously noted in this judgment the parties are in agreement as to what constitutes and what is the value of the matrimonial pool.  The parties’ asset pool is as follows:

   Real Estate

i.	Property A	$265,000.00
ii.	Property B	$480,000.00
iii.	“Property F”	$365,000.00
iv.	Property G	$95,000.00
v.	“Property H Parcel”, “Property I Parcel” and “Property J Parcel”,	$340,000.00
vi.	Property K	$90,000.00
vii.	Property L	$265,000.00
viii.	Property M	$75,000.00
ix.	Property N	$110,000.00
x.	Property T	$895,000.00
xi.	Property O	$60,000.00
xii.	Property P	$95,000.00
xiii.	“Property Q”	$85,000.00
xiv.	“Property R”	$80,000.00
xv.	Property C	$220,000.00
xvi.	Property D	$210,000.00
xvii.	100 acres Property S	$158,000.00
xviii.	Property E	$240,000.00
Less mortgage over Property E	-$130,000.00
Total net real estate	$3,998,000.00

It is agreed that properties (i) to (xiv) were gifted to the parties by the husband’s father.

Non-Real Estate Assets

Farm plant and equipment	$108,950.00
Jointly owned livestock – sheep	$48,000.00
Husband’s CBA bank account	$3,000.00
Wife’s CBA bank account	$2,000.00
Husband’s AMP shares	E$8,000.00
Wife’s 2001 Mercedes	E$8,000.00
Wife’s antique furniture/stock	E$25,000.00
Husband’s superannuation	Nil
Wife’s superannuation	$1,999.00
Subtotal	$204,949.00
Total asset pool	$4,202,949.00

1. The parties have agreed that the wife is to retain the following real estate and assets:

Property A	$265,000.00
Property B	$480,000.00
Property C	$220,000.00
Property D	$210,000.00
Equity in Property E	$110,000.00
Antique furniture	$25,000.00
Wife’s CBA bank account	$2,000.00
Wife’s superannuation	$1,999.00
Wife’s motor vehicle	$8,000.00
Total	$1,321,999.00

Contributions

1. Neither party had any assets of significance at the commencement of their marriage.

1. The manner in which the parties acquired their asset pool is set out in detail earlier in this judgment.  It is common ground that of the 19 properties owned by the parties, 15 were gifted to them during the course of the marriage by the husband’s father.

2. It is argued on behalf of the husband that the value of the properties gifted to the parties by the husband’s father comprises 55 per cent of the parties’ current asset pool.  It is therefore submitted on behalf of the husband that this contribution by his father is such that the husband should receive 70 per cent of the parties’ asset pool.  This would mean that the wife would retain the properties and assets as agreed at a value of $1,321,999.00 and that the husband would retain the balance of the parties assets, valued at $2,880,950.00.

3. It is submitted on behalf of the wife that whilst there was the initial contribution made by the husband’s father by way of gifts of property to the parties, those contributions have been eroded or overtaken by the contributions made by the wife as the primary homemaker and carer of the parties’ seven children over the parties’ 30 year marriage as well as the contributions made by both of the parties in the maintenance and improvements made to their property, particularly the four properties where the parties built or renovated homes.

4. It is further argued on behalf of the wife that the gifts of property by the husband’s father were, in part, in recognition of the husband’s many years of low paid work for his father.  In these circumstances the wife argues the parties’ family was impacted by the husband’s loss of income and accordingly the wife has indirectly contributed to the lands gifted by the husband’s father.

5. It is therefore argued on behalf of the wife that the parties’ contributions should be considered to be equal.

1. Both Counsel for the husband and the wife made reference to the principal enunciated by the Full Court in the matter of Pierce & Pierce (1999) FLC 92-844 at paragraph 28 where the Court held:

   28. In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.

2. In the matter of Pierce (supra) the husband was found to have contributed the whole of the funds used to purchase the former matrimonial home at the commencement of their ten year relationship.  Post separation the husband retained the primary care of the parties’ two young children.  The Full Court determined in those circumstances the husband’s contributions to be 70 per cent.

3. Counsel for the wife referred the Court to the Full Court decision of
   In the marriage of Brown [2005] FamCA 389. In that matter the parties’ assets were valued at $2.36 million which comprised in part of a cane farm and inheritances from the husband’s parents that represented 50 per cent of their property pool. The parties were married for 41 years and had two adult children. The wife had been the homemaker for the entirety of the relationship. The Full Court, having cited the principles set out in Pierce (supra) with approval, held that in the circumstances of the matter the parties’ contributions should be assessed at 60/40 in the husband’s favour.

4. It is submitted on the wife’s behalf that this matter can be distinguished from the decision in Brown (supra).  In that matter there were only two children and there has been no extensive improvements done to the inherited property.  In this matter, it is argued, the parties have seven children, the parties extensively renovated four homes on four of the gifted properties thereby considerably increasing their value and on the husband’s own evidence, the gifts from the husband’s father were in part to compensate the husband, and, the wife would argue, his family, for many years of low paid work.

5. It is therefore submitted on behalf of the wife that the appropriate division of the parties’ assets in this matter should be an equal split.

6. If orders were made in the terms sought by the husband, he would retain matrimonial assets with a value of $2,886,950.00 and the wife would retain assets with a value of $1,321,999.00, a difference of $1,558,951.00 in the husband’s favour.  Given the length of the parties’ marriage, that they have seven children, that the wife was the primary carer of the parties’ seven children during the marriage, that the wife retains the primary care of the parties’ 12 year old daughter, the improvements done by the parties to the gifted properties, the concession by the husband that the gifts by the husband’s father were in part compensation for many years of low paid work done by the husband for his father and that the husband has a greater earning capacity than the wife, such an outcome cannot be seen to be in any way appropriate or just and equitable.

7. Whilst it is submitted on behalf of the wife that the parties assets should be divided equally between the parties, having considered all the relevant factors in this matter I am satisfied that there should be an adjustment in the husband’s favour because of the gifts made to the parties by the husband’s father during the marriage. 

8. The gifts from the husband’s father have provided the parties with homes for their large family throughout the marriage and have enabled them to build up a considerable property portfolio which includes properties that now generate an income stream.  Further, the parties have been able to build up their property portfolio with relatively minimal borrowings.

9. It is submitted on behalf of the husband that the adjustment that should be made in his favour arising from his father’s gifts is 70 per cent give that the properties gifted by the husband’s father constitutes 55 per cent of the parties’ asset pool.

1. The intervening contributions by the wife as mother and homemaker over the long marriage, the building of and extensive renovation done on four of the gifted properties and the husband’s concession that the properties were gifted in part by the husband’s father in recognition of many years of low paid work done by the husband for his father, counteract the weight to be attached to the initial contributions made by the husband’s father.

2. When balancing the parties’ respective contributions I am of the view that in all the circumstances of this matter the parties’ assets should be divided such that the husband receive 60 per cent of the property pool and the wife receive 40 per cent of the property pool.

Section 75(2) factors

1. It is the husband’s submission that there should be no adjustment for factors pursuant to section 75(2) of the Act.

2. Whilst conceding his greater earning capacity, the husband argues that the wife’s earnings in part-time [omitted] are supplemented by the rental received from the properties which are to be retained by the wife as part of the property settlement as agreed between the parties.  As such the husband submits the parties’ total incomes are very similar.

3. By agreement, the parties’ youngest daughter, [X], lives with the wife from Sunday to Friday and spends time with the husband from Friday to Sunday.  Thus the wife has [X]’s primary care.

4. It is submitted on behalf of the wife that even with rental income, she earns considerably less than the husband.  The wife earns $22,000.00 per annum, working part-time at [omitted].  From the rental the wife currently receives from the tenanted properties, she is servicing the mortgage on the Property E property.  The Property E property is currently untenanted.

1. It is submitted on behalf of the wife that she also bears the larger proportion of the financial responsibility for [X].  The wife is [X]’s primary carer and has received no child support from the husband since separation.  Further, despite the husband’s promises to meet the school fees for [X] attending a private Catholic high school, in 2013, the husband has failed to do so and the wife has had to pay these fees in full.  The wife is not confident the husband will contribute to the cost of [X]’s education into the future.

2. There was no percentage adjustment sought by Counsel for the wife in relation to factors pursuant to section 75(2) of the Act. Rather it was argued on the wife’s behalf that these factors further support the wife’s position that the parties’ assets should be divided equally between them.

3. I am of the view there should be an adjustment in the wife’s favour for factors pursuant to section 75(2) of the Act.

4. I am satisfied the husband has a greater earning capacity than the wife, even with the rental income the wife receives from the properties retained by her.  I am also satisfied that the wife will have the greater responsibility for [X]’s care given that [X] primarily lives with the wife and the husband has to date paid no child support for [X].

5. Accordingly there will be an adjustment of 2.5 per cent in the wife’s favour in relation to factors pursuant to section 75(2) of the Act.

Conclusion

1. As can be seen, the Court has determined that the wife shall receive 42.5 per cent of the property pool and the husband shall receive
   57.5 per cent of the pool.  This means the wife should receive assets and money to the value of $1,786,253.40 and the husband should receive $2,416,695.60 of the asset pool.

1. The parties are in agreement that the wife shall retain assets to the value of $1,321,999.00.  Accordingly, if the husband is to retain all of the remaining property he must pay the wife $464,253.40.

2. In the event orders were made other than in the terms proposed by the husband, the husband seeks that orders be made that will allow him six months to pay any additional monies to the wife so that the husband has sufficient time to sell or raise money on properties chosen by him from those properties he is retaining.

3. The wife seeks orders that in order for her to receive her share of the matrimonial assets, orders be made for the immediate sale of
   Property T, and that she receive her entitlement from the net proceeds of sale of that property.

4. The husband wishes to retain Property T, where he is currently residing.  I believe the husband should be afforded the opportunity to do so.  However, the wife should not have to wait six months to receive the entirety of her share of the parties’ assets.

5. Accordingly, orders will be made that provide for the transfer of the various properties as has been agreed between the parties save for the property at Property T.  An order will be made for the husband to pay the wife the sum of $464,253.40 (“the sum”) on or before 22 April 2014 (“the date”) at which time the wife shall transfer her interest in Property T to the husband.  In the event the husband fails to pay the sum by the date, Property T shall be sold and the wife shall receive from the proceeds of sale all outstanding monies plus penalty interest calculated at a rate of 10 per cent per annum from the date until payment. 

1. An order will also be made that if the husband fails to pay the wife the sum on or before the date, the husband shall be responsible for all payments in relation to the mortgage over the Property E property from the date until the payment is made to the wife.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate: 

Date: 22 January 2014