Christie and Christie and Ors

[2008] FamCA 1139

FAMILY COURT OF AUSTRALIA

CHRISTIE & CHRISTIE ORS [2008] FamCA 1139

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

APPLICANT: Mrs C Christie

RESPONDENT: Mr S Christie

SECOND RESPONDENT: Mr R Christie

FIFTH RESPONDENT: Christie Nominees Pty Ltd

SIXTH RESPONDENT: D Pty Ltd

SEVENTH RESPONDENT: P Pty Ltd

FILE NUMBER: MLF 3391 of 2005

DATE DELIVERED: 28 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: STEPHEN FARMER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: Mr Melilli

SOLICITOR FOR THE RESPONDENT: LANDER & ROGERS

COUNSEL FOR THE SECOND, FIFTH, SIXTH & SEVENTH RESPONDENTS Mr Weil

SOLICITOR FOR THE SECOND, FIFTH,

SIXTH & SEVENTH RESPONDENTS:

KENNEDY WISEWOULD

Orders

1. That on 25 November 2008 or such earlier date as may be agreed between the parties and contemporaneously:-

   (a)       The husband pay to the wife the sum of $360,000 (“the Payment”);

   (b)The wife transfer her right, title and interest in the real properties situated at W (“the Home”) to the husband and or his nominee and E1 and E2 (“the [E] properties”) to the husband, subject to existing encumbrances, and sign all consequential documents as may be required;

   (c)The wife vacate the Home and the E properties;

   (d)The husband pay to G Private School all school fees (of whatsoever nature) currently outstanding with respect to the child A.

2. That the husband assume responsibility for (and indemnify the wife against) any existing and future liabilities for all rates, taxes, household bills (including gas and electricity bills) and other outgoings relating to the Home and the E properties.

3. That the husband be solely liable for and indemnify the wife against any liability in respect of the National Australia Bank overdraft account in his name.

4. That the husband pay and indemnify the wife against any liability for capital gains tax arising from the disposition of the E properties.

5. That the husband sign all documents and do all things necessary in his capacity as a director of Christie Developments Pty Ltd to transfer to the wife the Mercedes Benz unencumbered.

6. That the furniture and contents of the Home and the E properties be divided between the husband and the wife in accordance with the typed list annexed hereto and marked “A.”

7. That the wife resign as a director of Christie Developments Pty Ltd ("the company"),  transfer any shares that she has in the company to the husband or his nominee and relinquish any claims she may otherwise have against the company upon the superannuation split provided for in paragraphs 8 to 13 hereof being effected.

8. That a base amount of $155,000 is allocated, as required by Section 90MT(4) of the Family Law Act 1975, to the wife out of the husband's interest in the Christie Superannuation Fund ("the Fund").

9. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:-

   (a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

   (b)The husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband's interest in the Fund is correspondingly reduced.

10. That the trustee of the Fund ("the Trustee") shall do all such things and sign all such documents as may be necessary to:-

    (a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by paragraphs 8 and 9 of these Orders;

    (b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband's interest in the Fund.

11. That paragraphs 8 to 10 of these Orders have effect from the operative time and the operative time is 4 business days after the making of these Orders.

12. That, the wife shall do all such things and sign all such documents as may be necessary, including, but not limited to, exercising her request pursuant to Regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband's interest in the Fund to a fund of the wife's choosing in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

13. That the wife pay 40% of any taxes or penalties that the Christie Superannuation Fund may incur as a result of it having been a non-compliant fund at any time up until 1 May 2008 and the husband otherwise indemnify the wife against any liabilities (including, but not limited to liabilities for fines, penalties and taxation) arising from her association with Christie Developments Pty Ltd and or the Christie Superannuation Fund.

14. That if the husband defaults in making the Payment by the due date, the former matrimonial home situated at W ("the Home") and the real properties situated at and known as E1 and E2 ("the [E] properties") be sold on the following terms:-

    (a)by licensed real estate agents ("the Agents") agreed upon by the parties or, failing agreement, appointed by the then President of the Real Estate Institute of Victoria;

    (b)at agreed reserve prices or, failing agreement, at prices determined a valuer appointed by the Australian Property Institute;

    (c)on Contracts of Sale providing for settlement in 60 days unless otherwise agreed between the parties;

    (d)by public auctions on such dates as may be agreed between the parties or, in default of agreement, nominated by the Agents;

    (e)if they are not sold by auction, then by private treaty.

15. That the proceeds from the sale of the Home and the E properties be distributed at settlement as follows:-

    (a)Firstly, to the payment of outstanding water and council rates relating to the properties;

    (b)Secondly, to discharge any mortgage secured over the Home or the E properties; 

    (c)Thirdly, to the payment of outstanding gas and electricity bills relating to the properties;

    (d)Fourthly, to payment to G Private School of the amount required to pay all arrears and all future school fees for the child A;

    (e)Fifthly, the make the Payment to the wife together with accrued interest thereon calculated from the due date of payment at the rate of 11% per annum;

    (f)Sixthly, the sum of $185,000 to the second respondent;

    (g)The balance to the husband.

16. That the wife indemnify the husband and/or the company against any liability for fines relating to motoring offences or parking infringements of the wife (provided that the husband delivers any notices of such fines to the wife within 7 days of receiving them). 

17. That the second, fifth, sixth and seventh respondents discontinue their respective proceedings in the Supreme Court against the wife and relinquish all claims (of whatsoever nature) against the wife, the wife’s parents and the wife’s brother and the wife relinquish all claims (of whatsoever nature including as to costs) against all the respondents and the wife otherwise indemnify all the respondents with respect to any claim for costs by the wife’s parents and the wife’s brother (save for the costs already ordered, which are to be paid by the respondents as ordered) and all parties sign all documents necessary to give effect to this order.

18. That the husband and the second respondent indemnify the wife in respect of any claim that may be made against the wife by or on behalf of the husband’s mother.

19. That there be a declaration to the effect that the wife is not indebted to any of the 2nd, 5th, 6th or 7th respondents, save as provided by these orders.

20. That 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 other property (including choses in action) in the possession of such party as at the date of these orders;

    (b)Monies standing to the credit of the parties in any joint bank account be divided equally between the parties;

    (c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

    (d)Insurance policies remain the sole property of the owners thereof;

    (e)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;

    (f)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

21. That all outstanding proceedings between the parties be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

AND THE COURT NOTES:

A.That these Orders are intended so far as is possible to finalise the financial relationship between the parties and to avoid further proceedings between them.

B.That the trustee of the Christie Superannuation Fund is Christie Developments Pty Ltd and the husband and the wife are the directors and shareholders of that company.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3391 of 2005

MRS C CHRISTIE

Applicant

And

MR S CHRISTIE

Respondent

And

MR R CHRISTIE

Second Respondent

And

CHRISTIE NOMINEES PTY LTD

Fifth Respondent

And

D PTY LTD

Sixth Respondent

And

P PTY LTD

Seventh Respondent

REASONS FOR JUDGMENT

1. This is a matter that has been part-heard from some months ago, and on any view was going to be a complex hearing, having regard to the fact that I decided to hear, as part of the proceedings between the husband and the wife, what was a dispute between at least the wife and the husband's brother in the Supreme Court.  The last two days have been spent by the parties in sorting out what I would have to describe as one of the most complex issues that I have seen for some time. 

2. Importantly, my function is to look at the result as between specifically the husband and the wife for the purposes of s 79 of the Family Law Act 1975 (“the Act”), and I have come intimately acquainted with this file over a long history, so to that extent I know exactly what the parties were doing and what these figures mean. I am satisfied for the purposes of Part VIII of the Act, these orders are just and equitable.

3. I also congratulate the parties for having achieved this and particularly the third party, having regard to the fact that their participation in this meant that the parties only had one hearing instead of a series of rolling hearings in different jurisdictions.

4. It goes without saying also that the parties could not have possibly achieved this outcome without the role of the lawyers and I wish to publicly thank the three of you and your respective instructors for the work that you have done over not only the life of this file, but specifically, the last couple of days.  It is not lost on me that there has been a fair bit of anguish in all of this.  So to that extent I wish to say thank you.  The parties have been well served by your assistance.

5. I will make orders in the matter of Christie in terms of the minutes, which I will mark as Exhibit “A”.  I direct that the original minute remain on the court file and I will ask the solicitor for the wife to engross and email just those minutes in their exact amended form.

6. My order will include an order dismissing all proceedings from the list of cases I will not be hearing.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 November 2008