FAMILY COURT OF AUSTRALIA
| CLARKSON & CLARKSON | [2008] FamCA 1098 |
| FAMILY LAW – PROPERTY – Valuation of minority interest – Value to owner - Trial Judge’s duty to determine value – Initial contributions – s 75(2) – Income and age disparity between the parties – Adult children – CGT liability |
| Family Law Act 1975 (Cth) |
| AJW v JMW (2002) FLC 93-103 | ||
| APPLICANT: | Ms Clarkson | |
| RESPONDENT: | Mr Clarkson |
| FILE NUMBER: | MLF | 2046 | of | 2005 |
| DATE DELIVERED: | 12 December 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Justice Watt |
| HEARING DATE: | 6, 7, 8, 9, 10, 16 October and 11 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC Mr Crofts |
| SOLICITOR FOR THE APPLICANT: | Westminster Lawyers |
| FOR THE RESPONDENT: | In person |
Orders
IT IS ORDERED THAT:
1. That the wife retain:
a. all her right title and interest in any superannuation in her name with:
i. Victorian Independent School superannuation fund
ii. HA Fund
iii. Host Plus
iv. Supertrace
b. All her right title and interest in:
i. All accounts in her name at Westpac Bank
ii. All accounts in her name at ING
c. The benefit of the interim property distributions received by her pursuant to the Orders of Young J made 31 July 2007
2. That the husband retain:
a. all his right title and interest in the property known as and situate at N being the land more particularly described in certificate of title volume … Folio … and the contents thereof.
b. all his right title and interest in any superannuation in his name with Macquarie Bank
c. All his right title and interest in all accounts in his name at National Australia Bank
d. The benefit of the interim property distributions received by him pursuant to the Orders of Young J made 31 July 2007
3. That the husband forthwith do all such acts and things at his expense as may be necessary to:
a. transfer to the wife her car registration number … with current registration;
b. remove caveat no … lodged by him over the property known as and situate at K.
4. That the wife forthwith at the expense of the wife:
a. Resign as a director or office bearer of J…
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- Clarkson and Clarkson [2008] FamCA 1098
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- [2008] FamCA 1098
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CaseChat Overview and Summary
The court was required to determine the specific entitlements of each party to their respective superannuation interests, bank accounts, and other financial assets. Further issues included the transfer of a motor vehicle, the removal of a caveat, the wife's resignation from directorships and transfer of company shares, and the husband's indemnification for certain liabilities. The court also had to address the sale of a property, the distribution of sale proceeds, and the payment of various professional fees and legal costs.
Justice Watt made detailed orders for the division of property, largely reflecting the parties' existing holdings in superannuation and bank accounts, with specific provisions for the transfer of a car and the removal of a caveat. The wife was ordered to resign from directorships and transfer company shares, while the husband was to indemnify her against future liabilities arising from those roles. A significant portion of the wife's superannuation was to be transferred to the husband. The court also ordered the sale of a property, with a complex mechanism for its sale and the distribution of proceeds, including a substantial payment to the wife for a new home and a percentage split of the remaining balance. Provisions were made for the payment of expert valuers' fees and legal costs, with a Registrar authorised to sign documents on behalf of a defaulting party.
Orders
Orders of the court
IT IS ORDERED THAT:
1. That the wife retain:
a. all her right title and interest in any superannuation in her name with:
i. Victorian Independent School superannuation fund
ii. HA Fund
iii. Host Plus
iv. Supertrace
b. All her right title and interest in:
i. All accounts in her name at Westpac Bank
ii. All accounts in her name at ING
c. The benefit of the interim property distributions received by her pursuant to the Orders of Young J made 31 July 2007
2. That the husband retain:
a. all his right title and interest in the property known as and situate at N being the land more particularly described in certificate of title volume … Folio … and the contents thereof.
b. all his right title and interest in any superannuation in his name with Macquarie Bank
c. All his right title and interest in all accounts in his name at National Australia Bank
d. The benefit of the interim property distributions received by him pursuant to the Orders of Young J made 31 July 2007
3. That the husband forthwith do all such acts and things at his expense as may be necessary to:
a. transfer to the wife her car registration number … with current registration;
b. remove caveat no … lodged by him over the property known as and situate at K.
4. That the wife forthwith at the expense of the wife:
a. Resign as a director or office bearer of J Pty Ltd in favour of the husband or his nominee
b. Resign as a director or office bearer of L Pty Ltd (in whatever ‘capacity) in favour of the husband or his nominee
c. Transfer to the husband or his nominee all her right title and interest in any shares in J Pty Ltd and L Pty Ltd
d. Assign to the husband any debit or credit loan account in her name with J Pty Ltd or the Y Unit Trust or L Pty Ltd (in whatever capacity) or the L Investment Trust
And that the husband as and from this date indemnify the wife in respect of any taxes, fines, lodgement fees or charges of whatsoever nature that shall at any time be levied on her arising whether directly or indirectly from her role(s) in J Pty or the Y Unit Trust on or L Pty Ltd (in whatever capacity) or the L Investment Trust or the Clarkson Family Self Managed Superannuation Fund after 30 June 2007
5. That in accordance with S 9OMT of the Family Law Act 1975 the husband is entitled to the specified percentage, being 100% of each splittable payment made out of the wife’s interest in the self managed superannuation fund Clarkson Family Superannuation Fund (‘The Fund”)
6. The operative date of Order 5 is the date of transfer of then transferable benefit being a date not more than 14 days from the date of this Order
7. That unless the wife pays to the husband the sum of $728,988 within 60 days of the date of these orders the property known as and situate at K being the land more particularly described in certificate of title volume … Folio … (“the property”) be sold by a Real Estate Agent to be agreed by the parties in writing within 10 days and in default of agreement a Real Estate Agent nominated in writing by the President for the time being of the Real Estate Institute of Victoria (‘the Agent’):
a. For sale at a price, unless otherwise agreed by the parties in writing, of not less than $2,700,000 on before 30 March 2009;
b. If not sold, then for sale by public auction on a date to be fixed by the Agent not later than 30 April 2009, for a reserve of not less that $2,700,000 or such other sum as shall be recommended by the Agent in writing and within such time frame as agreed by the parties and if not agreed as determined by the agent
c. Subject to a marketing and advertising campaign recommended by the agent.
7A. That in the event that the wife makes the payment in accordance with paragraph 7 of this order the husband shall transfer to the wife any interest in the property to the wife.
8. Any improvements to the property recommended by the agent and agreed by the parties in writing shall be undertaken by and at the direction of the Agent. Such improvements shall include the maintenance of the garden and the pool to a standard directed by the Agent.
9. The wife as registered proprietor through her solicitors shall otherwise have the conduct of the sale of the property.
10. The proceeds of sale of the property shall be paid:
a. First in payment of the agents fees and expenses (including improvements conducted pursuant to Para 8);
b. Second in payment of the wife’s solicitors reasonable conveyancing costs;
c. Third as to $76,225 to the wife in respect to her anticipated acquisition cost of a new home;
d. As to the balance then remaining as to 71.5% to the wife and 28.5% to the husband save that $20,000 shall be retained from the funds payable to the husband and held in interest bearing trust pursuant to these orders by the wife’s solicitors.
11. That until settlement of the sale the wife:
a. Shall have the sole use and occupancy of the property to the exclusion of the husband;
b. Shall maintain the property in good order;
c. Shall make the property available for inspection as reasonably directed by the agent
12. That the parties shall each pay one half the single expert business valuer Mr S’s outstanding fees in the total sum of $22,715
13. That the single expert property valuer Mr BN is and is hereby directed to provide to the parties within 14 days an itemised bill selling out a description of each item of work done and attendance made in connection with this matter, the date it was made the time spent in such attendance or work and the rate charged for such attendance. The matter of Mr BN’s fees is, unless otherwise agreed in writing, referred to a Registrar of this Court for final determination.
14. The husband shall pay:
a. The costs of the wife of and incidental to his application during the course of the trial for leave to amend his response; and
b. One half of the costs of the wife in issuing serving and attending on Mr BN in connection with the subpoena directed by me to be served on Mr BN including the costs of and incidental thereto
Such costs unless otherwise agreed to be taxed
15. The funds held in trust pursuant to Para 10 (d) hereof shall be disbursed to pay the wife her costs pursuant to Para 13 hereof and any balance then remaining shall be disbursed within 30 days of determination of the amount of costs or agreement which ever is the sooner to the husband
16. That pursuant to S 106A in the event that any party fails to sign any document, as required in these Orders a Registrar of this Honourable Court is authorised to sign such document, deed or instrument in the name of the defaulting party and do all acts as are necessary to give validity to those documents.
17. I discharge all orders in relation to costs including reserved costs
18. I otherwise discharge all pending applications
19. Certify for Counsel
AND IT IS FURTHER ORDERED BY CONSENT PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
20. That within seven days of receipt by him of all or any of these documents the husband send to the solicitor for the wife by ordinary mail his notices of assessment and any amended notice later issued by the Australian Taxation Office for the years ended 30 June 2006, 2007 and 2008.
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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