COLEY and DANAE
[2018] FCWA 14
•24 JANUARY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: COLEY and DANAE [2018] FCWA 14
CORAM: DUNCANSON J
HEARD: 10, 11, 12, 13, 17 JULY 2017
DELIVERED : 24 JANUARY 2018
FILE NO/S: PTW 1603 of 2014
BETWEEN: MS COLEY
Applicant
AND
MR DANAE
Respondent
Catchwords:
PROPERTY - Where the applicant asserts the approach of the respondent forms a "false front" in respect of property and that he is the owner of various entities - Where the structure of the entities forming the Group was established by the respondent and his late mother prior to the commencement of cohabitation - Where it is found the entities are owned in accordance with their legal ownership - Where it is just and equitable to make a property settlement order - Where the approach to the assessment of contributions is considered - Where a global approach is adopted - Adjustment for s 205ZD(3) factors - Where the proposed orders are just and equitable
Legislation:
Family Court Act 1997 (WA) s 205ZD(3), s 205ZG
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Ms G Anderson
Respondent: Mr M Bartfeld QC with Mrs T Farmer
Solicitors:
Applicant: O'Sullivan Davies
Respondent: Loukas Law
Case(s) referred to in judgment(s):
Bilous v Mudaliar & Anor (2006) 35 Fam LR 55
Browne v Green (1999) FLC 92-873
Chorn and Hopkins (2004) FLC 93-204
Dickons v Dickons (2012) 50 Fam LR 244
Holland v Holland [2017] FamCAFC 166
Kardos v Sarbutt (2006) 34 Fam LR 550
Khademollah v Khademollah (2000) FLC 93-050
Kowaliw and Kowaliw (1981) FLC 91-092
Lenehan and Lenehan (1987) FLC 91-814
McMahon and McMahon (1995) FLC 92-606
Norbis v Norbis (1986) 161 CLR 513
Stanford v Stanford (2012) 247 CLR 108
Williams v Williams [2007] FamCA 313
Zaruba and Zaruba (2017) FLC 93-776
Zyk and Zyk (1995) FLC 92-644
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
INTRODUCTION
1The applicant, [Ms Coley] and respondent, [Mr Danae] seek orders for property settlement arising out of their de facto relationship.
2There is a significant difference in the orders sought by each party. They do not agree on the composition of their property or the approach to be taken to the assessment of contributions. They also disagree as to the division of their property, whether that be on a percentage basis or otherwise.
The orders sought by the applicant and overview of her position
3The orders sought by the applicant are that the net assets and liabilities, excluding certain property and liabilities, be divided 55% to the applicant and 45% to the respondent and that the respondent pay to the applicant such sum as to effect that division. In calculating the sum payable the respondent is to refinance the National Australia Bank ("NAB") loan in relation to the property at [Property A] and otherwise the parties retain the assets, liabilities and superannuation in their respective possession.
4The applicant's position is that the asset pool is worth about $11 million. She submits the respondent has held out a "false front" and that for the purpose of these proceedings he is the owner of all of the entities set out in her schedule of assets.
5The applicant's case is that the parties' contributions were equal. She submits her initial contributions were greater than those of the respondent. She says during their relationship the parties shared their costs and her earnings were greater.
6The applicant submits that the respondent was able to retain and acquire properties and service debt by using income generated by his business by reason of the applicant's separate, capital contributions towards the Property A loans.
7An issue for determination is whether contributions should be assessed globally or on an asset-by-asset basis. The applicant proposes a global approach asserting that there has been significant intermingling of the parties' finances during their medium length relationship.
8The applicant's case is that there should be an adjustment in her favour by reason of the respondent's earning capacity and the property and financial resources to be retained by him.
The orders sought by the respondent and overview of his position
9The respondent proposes that he pay to the applicant a settlement sum of $1,800,000 less 50% of the outstanding liability to NAB in relation to Property A ("the Property A debt"). In closing counsel for the respondent submitted the sum of $1,800,000 is an "appropriate figure" to be paid by the respondent to the applicant, from which she would be obliged to repay her half of the Property A debt.
10Otherwise the parties should retain the assets, liabilities and superannuation in their respective possessions.
11The respondent's case is the Court should adopt an asset-by-asset approach in assessing the parties' respective entitlements. He refers to the assets owned by the respondent prior to the commencement of the relationship and says that the structure of the entities forming the "Group" was well established by the respondent and his mother, the late [Mrs Fir] well before the commencement of the relationship.
12The respondent submits he made no contribution to the applicant's business and she made no contribution to his business or other assets. They contributed equally to their day-to-day living. The applicant applied her funds to Property A. Each met one half of the loan repayments and each claimed one half of the rental losses in their tax returns.
13The respondent submits that he and Mrs Fir built up the assets of the business by working together, they operated the business as partners and both contributed to the success of the operation and shared the risks. Their efforts contributed to its overall success.
14Upon the sale of Property A the parties were left with a shortfall in terms of monies owed to the bank, part of which the respondent attributes to the applicant's neglect or delay in considering an offer in a timely manner.
15Upon the death of Mrs Fir the respondent's sister, [Ms Danae] became the executor of her estate and also an appointor of [Trust A]. Trust A holds most of the shares in [Company A].
16The respondent says Ms Danae has an entitlement to share in the assets of Trust A.
17The respondent submits the Court should find that there are three categories of assets, those of the applicant (including her superannuation), those of the respondent (with his superannuation as a financial resource) and the joint category which includes the Property A debt. Having regard to the differing nature, form and characteristics of the parties' contributions in the various classes of property he submits the asset‑by‑asset approach is overwhelmingly appropriate.
18The respondent submits there is no evidence to support an adjustment to the applicant for s 205ZD factors.
19The respondent does not propose a percentage division, but proposes a settlement sum as set out at paragraph 9 above.
Credibility of the parties
20The applicant was a truthful witness. She was forthright, precise and concise. She made admissions against her own interests, for example in relation to her personal circumstances, health and employment opportunities.
21The evidence of the respondent was mostly reliable. A contentious issue between the parties was the extent to which the respondent's assets were intermingled with those of Mrs Fir. The respondent was thoroughly and painstakingly cross‑examined by the applicant's counsel. He maintained his position throughout, although some of his answers lacked depth. At times when unable to explain certain financial arrangements, he merely said he disagreed with the proposition being put to him. In many instances where it was suggested that he was the true owner of most of the assets he referred to the "Group" position. In fairness to the respondent, some of the financial transactions put to him in cross-examination were precise and dated, and he was unable to recall the detail. I accept he was not the person who undertook the financial management of the business, which was largely left to Mrs Fir and the external accountants.
22This is not a matter to be determined largely by issues of credit. Both parties assert a position which favours each of them financially. That is not surprising in the circumstances of this case. It is necessary to examine the facts of and surrounding the parties' relationship very carefully.
BACKGROUND
23The applicant was born [in] 1960. She is 57 years of age. The respondent was born [in] 1964. He is 53 years of age. At the beginning of August 2005 the parties commenced cohabitation. The parties separated in April 2012.
24At the commencement of cohabitation the applicant owned a home in [Suburb A] and was a shareholder in a [retail company]. The respondent operated a [maintenance] business and he also owned property.
25The respondent's financial affairs were closely intermingled with those of his late mother. Mrs Fir died [in] 2015.
26During their relationship the parties purchased Property A. Following a decline in the economy the property was sold at a significant loss. A debt to NAB remains.
HISTORY
27Mrs [Fir] was born [in] 1939.
28The applicant was born [in] 1960.
29The respondent was born [in] 1964.
30In 1983 the respondent started [Business A].
31In January 1985 the respondent purchased a unit at [Property B] for $28,500.
32The respondent deposed that in 1991 Mrs Fir started working with him in Business A although Mrs Fir deposed to starting work with him in 1995.
33On 18 February 1992 Company A was registered. The respondent was the secretary of the company and he and his step-mother [Mrs Danae] were directors and shareholders.
34On 22 June 1992 [Company B] was registered which is the trustee for [Trust B]. The applicant and her former husband were the directors and equal shareholders in the company and the beneficiaries of the trust.
35On 19 August 1993 [Company C] was registered.
36On 22 November 1994 Mrs Fir sold her property [in] [Suburb B] and applied the proceeds to purchase a small business and shares. The business was subsequently sold and the proceeds invested in shares and cash with HSBC.
37In 1995 the applicant separated from her former husband.
38On 1 July 1996 the respondent and Mrs Fir established the [Family Super Fund]. The respondent was the trustee. Both the respondent and Mrs Fir commenced salary sacrificing into the fund.
39On 23 December 1996 Mrs Fir established Trust A. The respondent and Mrs Fir were joint trustees. Mrs Fir was the appointor and guardian. The respondent and his sister Ms Danae were primary beneficiaries and Mrs Fir was a residual beneficiary.
40Upon the creation of Trust A, Mrs Fir had shares and investments worth approximately $460,000. These funds were transferred into Trust A.
41On 1 January 1999 Mrs Fir and the respondent invested in a venture relating to units in [Suburb C].
42On 1 July 1999 the respondent's stepmother, Mrs Danae ceased to be a director of Company A. The respondent became the owner of two shares.
43On 20 August 1999 [Trust C] was established by the respondent and Mrs Fir. The respondent and Mrs Fir held all 100 unit shares in Trust C jointly.
44On 9 November 1999 Mrs Fir sold a property [in] [Suburb D] for $90,000.
45On 15 November 1999 Mrs Fir and the respondent as trustees for Trust C purchased [Property C] for $550,000. The purchase was funded with $350,000 cash from the Family Super Fund and the balance from Company A.
46On 24 December 1999 the units in Suburb C were sold.
47On 1 January 2000 Mrs Fir was diagnosed with breast cancer. She continued to work. She underwent a mastectomy.
48By declaration of trust signed 30 March 2001 Mrs Fir and the respondent declared that Property C was purchased by them as trustees on trust for the Family Super Fund. The respondent continued to lease the property for the business and paid rent to the Family Super Fund. On 19 July 2002 the respondent purchased [Property D] for $660,000. The purchase was funded with a deposit of $270,000 and a home loan from NAB.
49On 16 September 2002 Company A issued 98 shares which were allotted to Mrs Fir as the trustee for Trust A. The ASIC register however recorded that the shares were held in Mrs Fir's name, beneficially held.
50On 7 January 2003 the respondent's accountant notified ASIC of the error on the register and required an amendment to reflect that Mrs Fir as trustee for Trust A should have been recorded as shareholder. The register was not amended at that time.
51In 2003 the applicant and respondent started dating. The applicant became pregnant in 2003.
52In October 2003 the applicant acquired a one half interest in [Property E].
53In early 2004 the parties relationship ended briefly, but then resumed.
54On 18 December 2004 [Company D] was incorporated and the respondent was the sole director. Mrs Fir was subsequently appointed as alternate director of Company D on 26 April 2007 and as director on 19 May 2008. The respondent holds all 100 shares on trust for [Trust D] which was settled on 20 December 2004. Mrs Fir was the appointor and trustee of Trust D. The respondent was a trustee and a specified beneficiary.
55In 16 December 2004 [Company E] was registered. The respondent is the director and secretary. Trust D owns the shares in Company E. Company E is a labour hire company providing staff to Business A.
56On 21 December 2004 the Trust A was varied to appoint the respondent as joint appointor and guardian with Mrs Fir.
57On 11 March 2005 the respondent and Mrs Fir as trustees for Trust A purchased a 50% share in [Property F] for $287,000. The respondent secured the mortgage over Property D.
58In April 2005 the parties commenced IVF treatment.
59In June 2005 Mrs Fir ceased to draw a wage from Business A and salary sacrificed her wage to the Family Super Fund on the advice of the accountant.
60In June 2005 Mrs Fir commenced receiving a pension from the Family Super Fund.
61On 15 June 2005 the respondent and Mrs Fir as trustees for Trust A purchased [Property H]. It was bought at a cost of $976,800 with borrowings of $900,000 guaranteed by Company A.
62On 19 July 2005 Company A purchased [Property I] for $185,000.
63In August 2005 the applicant and the respondent commenced cohabitation and moved into a rental property at [Suburb E]. I find this was the commencement of their de facto relationship.
64On 30 August 2005 Property I was registered in the name of Company A.
65On 13 December 2005 by deed of variation, Mrs Fir was appointed joint trustee of the Family Super Fund. Around this time she transferred $482,577 into the Family Super Fund comprising her shareholding and cash from Trust A.
66On 22 January 2006 Mrs Fir transferred $129,751 into the Family Super Fund.
67On 1 February 2006 [Company F] was established as the trustee of the Family Super Fund. The respondent and Mrs Fir held one share each.
68On 10 April 2006 the applicant and her former husband were divorced.
69In April 2006 the respondent purchased a [Lamborghini Gallardo].
70On 1 June 2006 the applicant was appointed as a director of Company C.
71In March 2007 a [Lamborghini Diablo] was purchased. It was delivered in November 2008. The purchase price was $650,000 and mostly funded with borrowings.
72In mid-2007 the respondent and Mrs Fir purchased properties [overseas] [("the overseas properties")] which on 24 August 2007 were registered in the names of the respondent and Mrs Fir as joint tenants as trustees for Trust A. The purchase price was funded by capital withdrawals totalling about $228,000 by Mrs Fir from the Family Super Fund and the balance by mortgage guarantee of $1,050,000 secured over Property D.
73On 11 October 2007 [Super Trust Z] was established. The applicant and respondent were appointed as trustees.
74On 8 March 2008 the parties entered into a contract to purchase Property A for about $7.9 million.
75On 1 May 2008 [Property J] was purchased by Company A for $790,000 it was funded by a Commonwealth Bank of Australia ("CBA") loan. Mrs Fir guaranteed the loan from CBA with a mortgage over her property at Suburb A. Company A also provided a guarantee. The mortgage was registered over Property I. Company A funded the rental of the property to Business B.
76On 19 May 2008 Mrs Fir was made a director of Business B along with the respondent.
77On 17 June 2008 settlement of Property A occurred. The applicant paid the deposit of $390,000 in cash and the balance was funded by loans from NAB.
78On 1 July 2008 the applicant's shares in Company C were transferred into her personal name.
79On 27 November 2009 Property J was sold for $1,290,000.
80On 30 March 2009 Ms Danae was added as a director of Company F and Mrs Fir's share was transferred to her.
81In June 2009 the applicant sold her property at Suburb A with the entire net sale proceeds of $1,594,930 deposited into the Property A loan.
82On 6 October 2009 Trust D purchased [Property K] for $1,650,000 used by increasing an existing facility from the CBA for $500,000 by $1,450,000. The facility varied a guarantee to $1,950,000 secured by the first registered mortgage over Mrs Fir's Suburb A property.
83In 2010 the applicant repaid $365,000 to a Property A loan in a lump sum payment from her accumulated savings. The respondent subsequently restructured the balance of one of the Property A loans into his sole name. The parties agreed he shall bear responsibility for payment of that loan.
84On 11 May 2010 the respondent set up [Company G] which entity has since ceased trading.
85On 16 June 2011 the parties repaid $150,000 from the $1 million fixed interest facility from funds accumulated in the joint rent account.
86On 19 October 2011 Mrs Fir executed a will.
87On 2 February 2012, $250,000 was provided to Company A by Mrs Fir's cash withdrawal fund from the Family Super Fund to assist with cash flow problems.
88On 17 December 2012 Property I was sold for $821,718. The proceeds of sale were applied to debt reduction and to supplement the general cash flow of Business B.
89On 22 April 2013 the respondent resigned as a trustee of Super Trust Z and the applicant's sister, [Ms W] was appointed as trustee of the fund.
90In October 2013 the applicant was diagnosed with depression.
91In 2014 the respondent and Mrs Fir became aware that the ASIC register was incorrect and their accountants requested ASIC rectify the register.
92On 25 March 2014 the applicant commenced these proceedings.
93On 20 August 2014 Mrs Fir applied to the Court seeking declarations that her interests in Trust A, the Family Super Fund and Company A were held in her own right.
94On 3 February 2015 the applicant resigned as a director of Company C.
95On 16 March 2015 the parties received an offer for the sale of Property A for $5.5 million, which the respondent wished to accept, but the applicant did not.
96On 18 March 2015 the respondent emailed the applicant asking her to reconsider the offer and putting her on notice that in the event the offer falls through, any further loss shall be solely borne by her.
97On 1 June 2015 the respondent moved into Property B.
98On 1 July 2015 the respondent took over the finances of Business A and entities after Mrs Fir became ill.
99On 12 August 2015 Mrs Fir executed a will.
100On 14 October 2015 Mrs Fir executed a further will.
101On 16 October 2015 Mrs Fir gave evidence on commission.
102On 20 November 2015 Mrs Fir died. The respondent became the appointor of Trust D pursuant to the trust deed. He became the joint appointor of Trust A pursuant to the trust deed. At the time of her death Mrs Fir had no member entitlements in the Family Super Fund.
103On 22 March 2016 Ms Danae applied for a grant of Probate of the will of Mrs Fir.
104On 7 June 2016 Ms Danae was appointed as the estate's legal personal representative.
105On 6 May 2016 the parties accepted an offer on Property A of $4.8 million.
106In 2016 Trust A sold Property F with a sale price of $1,000,070. Trust A owned 50% of that property. The Trust A's 50% share of $507,740 was paid into Business A to assist with cash flow. It appears on the balance sheet of Business A as a loan from Trust A. It has not yet been repaid.
107On 16 July 2017 settlement for the sale of Property D was scheduled.
THE LEGAL PRINCIPLES
108These proceedings are governed by s 205ZG of the Family Court Act 1997 (WA) ("the Act").[1] Orders altering the property interests of the parties may only be made if the Court is satisfied that it is just and equitable to make such orders. The Court's discretion must be exercised in accordance with legal principles and the Court must not assume the parties' interests in their property are, or should be different from those determined by common law and equity. In Stanford v Stanford (2012) 247 CLR 108 the High Court said at [40] the question of whether it is just and equitable to make a property settlement order should not be answered with an assumption that:
… one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (footnote omitted, original emphasis)
[1] References in cited cases to equivalent provisions of the Family Law Act 1975 (Cth) ("the Family Law Act") have not been altered in this judgment.
109It is necessary firstly to identify the existing legal and equitable interests of the parties in their property.
110Having identified the existing legal and equitable interests of the parties in their property, it is necessary to ascertain whether it is just and equitable to make an order altering the interests of the parties in their property. In that process it is permissible to consider the contributions of the parties, but to do so is not mandatory, nor it is conclusive as to whether the just and equitable test has been met.
111If and when the Court determines it is just and equitable for the parties' interests in their property to be altered the Court must identify and assess the contributions of the parties within the meaning of ss 205ZG(4)(a), (b) and (c) of the Act. The Court must then identify and assess the relevant matters referred to in ss 205ZG(4)(d), (e), (f) and (g) of the Act which include those in s 205ZD(3).
THE EXISTING PROPERTY INTERESTS OF THE PARTIES
112Central to the identification of the existing property interests of the parties is a determination of the applicant's contention that the respondent is the owner of various entities to which I refer below.
113The applicant contended that the respondent is the owner of Trust A (which includes Company A), Trust D, Company D and Company E. The applicant invited me to make that finding notwithstanding the legal ownership.
114The applicant contended that the Group of entities was constructed as a tax planning vehicle and for asset protection. She submitted the legal position is not the beneficial or actual position in relation to the ownership of the assets of the entities.
115The respondent submitted the applicant's position is based on a number of misconceptions. He said the structure of the entities which today forms the Group was well established by himself and Mrs Fir prior to the commencement of the relationship between the parties.
Trust A and Company A
116The applicant acknowledged Trust A was established by Mrs Fir who used the trust for share investment. At the time of its establishment in 1996, the respondent and Mrs Fir were trustees and Mrs Fir was the appointor. Mrs Fir had approximately $460,000 in shares and investments at the time.
117In 2002 Company A issued a further 98 shares allotted to Mrs Fir as trustee for Trust A. Both the respondent and Mrs Fir deposed the reason those shares were allocated to her was to recognise her contributions to Business A. The applicant submitted that although the respondent said the basis of the share issue was to recognise the efforts of Mrs Fir, the reality was that the share issue was for asset protection. The applicant questioned why in 2002 the respondent gave his mother as recognition for her work in a period of about seven years, the lion's share of an entity which became the major holder of assets derived from income generated by his business. The applicant said this is just not a credible position.
118In relation to the shares allocation the respondent said although there was an error in the ASIC register and attempts were made as early as 2003 to correct it, it was not rectified until recently.
119The respondent deposed he and Mrs Fir were advised by their accountant that this type of structure would be prudent to protect their assets as they started to grow. They wanted to implement an ownership structure which placed the business in a good position from which to grow in a tax effective manner.
120It was squarely put to Mrs Fir that the purpose of the allocation of shares in Company A was for asset protection rather than a recognition for her efforts and she responded that she would be disappointed if that were the case. She said the respondent also wanted to give her something in the company because she had been working there for so long.
121In 2004 the respondent was advised to set up discretionary a family trust and by deed of variation he became a joint appointor with Mrs Fir of Trust A.
122In 2006 Mrs Fir transferred $482,577 from Trust A to the Super Fund. The applicant submitted that having withdrawn her funds from the trust it was left as an investment vehicle for the respondent.
123In 2005 Trust A acquired 50% of Property F for the operations of the business. Trust A later purchased Property H, a property occupied partly by Business A.
124The applicant pointed to the loans in relation to these properties being met by income from Business A.
125The applicant submitted there are no current leases in respect of Property C or Property H. There were however previously leases and Mrs Fir referred to rent in her evidence.
126In relation to property acquired by Company A, the applicant said Mrs Fir was not involved in the purchase of the Lamborghinis, nor the Property I and overseas properties.
127Although Mrs Fir was not involved in selecting Property I, she said she was dealing with the accounts at the time and recalled it was purchased for employees to live in and for premises to hold trucks.
128Mrs Fir was involved in the purchase of the Lamborghinis. She said she and the respondent talked about it, he said it was a good bargain and they could make money on it and she loved the idea and agreed.
129The unchallenged evidence of [Mr R], Accountant was to the effect that he was involved in meetings with the respondent and Mrs Fir around late 2005 about purchasing a Lamborghini Gallardo in 2006 and he provided advice to both of them. His recollection was that Mrs Fir guaranteed the loan for the vehicle. Mrs Fir's evidence was that the decision to purchase the second Lamborghini was a decision of both her and the respondent and it had been used for promotional purposes.
130It is not in dispute that the respondent and the applicant travelled overseas for holidays. Mrs Fir was involved in the purchase of these properties and the respondent refers to discussions with [Mr R] about the purchase. Mr R deposed he attended meetings with the respondent and Mrs Fir about these properties and both participated in the decisions and discussions about the purchase of the two properties which Trust A subsequently purchased on 24 August 2007.
131In support of her position, the applicant referred to two NAB documents which became Exhibits 16 and 19, which she referred to as "manager's statements". These documents referred to the respondent as Group controller and director and main shareholder of the Group. Exhibit 16 also referred to the respondent being 100% shareholder of Company C and Company E. The respondent said this was incorrect. He described it as a document by the bank assessing the Group's ability to facilitate a mortgage.
132The applicant also referred to the respondent's position statement which became Exhibit 17. She submitted he represented to the bank that the assets were all his in 2008 when he sought to borrow significant funds for Property A. The respondent said it was a Group position statement.
133In relation to the bank documents the respondent submitted they are no more than that. He submitted the bank had all of the properties including Mrs Fir's Suburb A property as security and cross-collateralisation and consequently the bank did not need to be too concerned about asset structures, provided it had security.
134Exhibit 17 identifies the entity owning each item of real estate, and refers to Business A as held in family trust and related company.
135In further support of her position, the applicant referred to Annexure F to the respondent's trial affidavit which is a schedule listing his assets and liabilities at the commencement of cohabitation. It includes Trust A. In the same document the respondent deposes to holding two shares in Company A which the applicant says is correct as it was not necessary for him to identify the other 98 shares given that he identified himself as the beneficial owner of the assets of Trust A.
136In cross-examination the respondent said Annexure F did not represent his assets but the Group assets. Annexure F is headed "[Danae] - Schedule of Assets and Liabilities as at cohabitation". The respondent acknowledged that it does not refer to the Group.
137Annexure F lists various items of property, but contains no values. There is a separate column headed "ownership" which includes the respondent, Mrs Fir and various entities.
138The applicant submitted that in the bank documents referred to above and in his trial affidavit, the respondent holds out that the assets of Trust A are his own.
139Referring to Exhibit 22 which is a schedule of the Trust A distribution history, the applicant pointed to distributions made to Ms Danae's children saying they were made prior to 2004 at a time when the respondent was not involved in the trust and there were no distributions to Ms Danae or her children once he commenced his involvement in the trust.
140In relation to Trust A the trust deed records that both the primary and residual beneficiaries are discretionary beneficiaries and Mrs Fir is a discretionary beneficiary by virtue of being the mother of one of the primary beneficiaries. Mrs Fir received a distribution each year except for 2010 and 2011.
141The applicant conceded Mrs Fir assisted with guarantees. She pointed out that Mrs Fir's guarantees were discharged in 2015 while the respondent's guarantee remained, yet on his case the assets belonged to Mrs Fir. The applicant did not accept the respondent's explanation which was that Mrs Fir had retired. She submitted it defies belief that Mrs Fir would be released from her obligations, yet retain the benefits, and said this is the false front which the respondent seeks to persuade the Court to accept.
The Super Fund
142The applicant's evidence was to the effect that the respondent told her that he used his mother to put his money into the Family Super Fund so that he could pay into it a greater amount than his age allowed, although the money was his. The respondent's own evidence was also to this effect and he said it was done on the advice of the accountant, for the benefit of him and Mrs Fir and to enable them to purchase property. The funds from which the superannuation payments were derived were generated by Business A. Exhibit 24 lists the superannuation contributions of the respondent and Mrs Fir over the years. The applicant referred to what she said was confusing evidence in that Mrs Fir says she did not expect to be paid when she first started working, yet $100,000 was paid into her member's account in the Family Super Fund.
143The loan over Property C was paid using funds held by the Family Super Fund.
144The applicant stated that the Family Super Fund is included in Annexure F to the respondent's trial affidavit as his property.
145The funds received by Mrs Fir's member account in the Family Super Fund far exceeded those of the respondent and the applicant submitted this was inconsistent with the roles they performed in the business, namely that the respondent was the driving force and his mother assisted him.
146The applicant pointed to the increase in Mrs Fir's balance in the Family Super Fund from $629,792 in 2005 to $3,714,626 in 2011 and submitted the respondent used her to get a tax effective payment into the fund and still have the ability to get it out to use as and when he wanted to. This was put to the respondent who disagreed.
147At the time the parties purchased Property A the respondent had bank approval to borrow $8.25 million, which he said was based on his income, the applicant's income and the Group's income. Yet, in 2008, the same year that Property A settled, he borrowed funds to meet the interest on the loans. He borrowed $800,000 in total between 2008 and 2012, by Mrs Fir withdrawing these funds from the Family Super Fund. The applicant submitted the reality was the money was in fact the respondent's and she does not accept this loan.
Mrs Fir's wills
148At clause 12.1 of her will dated 19 October 2011, Mrs Fir made a specific gift providing that the respondent be the primary beneficiary of a trust in respect of her shares in Company A. At clause 12.2 the will provided that if at the date of her death she was an appointor of Trust A and Trust D and any other trusts, the respondent shall receive her shares in the corporate trustees of such trusts. On 12 August 2015 Mrs Fir executed a further will.
149In terms of Mrs Fir's will dated 14 October 2015, Ms Danae was appointed her executor. Ms Danae was also appointed as appointor or guardian of Trust A. Mrs Fir's residuary estate is left equally to the respondent and Ms Danae and accordingly Ms Danae has an entitlement to a share in the assets of the trust.
150The applicant submitted that the intention of the 2015 wills was to ensure the "front" that Trust A and Company A were owned by Mrs Fir and that the entity should end up being owned equally by the respondent and his sister. Those wills were prepared in the course of these Family Law proceedings. She submitted the appointment of Ms Danae as the executor was designed to distance the respondent from the position.
Mrs Fir's role in the business
151The applicant submitted Mrs Fir commenced work with the respondent in about 1995 as deposed by her. This is probably correct as prior to then she had her own business. She commenced salary sacrificing to the Family Super Fund in 1996.
152Mrs Fir worked fulltime until 2010 after which she worked four days per week until shortly prior to her death. The applicant conceded she had a role in the business, but submitted it was a much lesser role than the respondent made out. She rejected his assertion that they were a team and said Mrs Fir's release from her guarantee suggested that was not true.
153The applicant submitted Mrs Fir had received significant funds from the superannuation fund in comparison to her initial capital injection of about $400,000 in 1996. Part of what she has received was hers, but the applicant submitted that part was money placed into the fund as advised by the accountant.
154The respondent submitted that he and his mother had a very close relationship. They worked together for a long time and as a result of their efforts valuable property being Trust A was acquired, established and maintained. The respondent referred to Mrs Fir placing her own assets into the structure and providing financial backing for various transactions. Her Suburb A home was provided as guarantee for transactions undertaken by Company A. Trust A was established with shares and investments of Mrs Fir. She also paid directly into the Family Super Fund and directly to the ATO. Most of the property purchases were guaranteed by her.
155The respondent's position was that Mrs Fir had an intimate knowledge of the business and the Group finances and the unchallenged evidence of the independent witnesses supported his evidence as to the extent of her involvement and its value to the business.
156The respondent submitted that he and his mother operated the business as partners and both contributed to the success of the operation and shared the risks.
157The applicant submitted the most "telling points" in support of her contention that Company A, Trust A and the Family Super Fund are the respondent's entities and he has treated the assets as his own, are as follows:
•Mrs Fir's guarantees were released when the respondent's own were not, so he alone bears the burden of the debt;
•there are no current lease agreements in place between the respondent's entities and Property C and Property H and he thus uses those assets as his own;
•the funds for interest repayments on the Property A loan came from the Group; and
•the 2011 will of Mrs Fir demonstrates the position as to the true ownership of the entities.
158The respondent pointed to the chronology of events and in particular the establishment of entities prior to his cohabitation with the applicant. Company A was established in 1992, 13 years prior to cohabitation. The Family Super Fund was established in 1996, nine years prior to cohabitation. Trust A was established by Mrs Fir nine years prior to the respondent's cohabitation with the applicant. Trust C was established by the respondent and Mrs Fir six years prior to cohabitation. Property C was acquired in 1999. It was transferred to the Family Super Fund in 2001, four years prior to cohabitation.
159The 98 shares in Company A were issued to Mrs Fir as trustee for Trust A in 2002 three years prior to cohabitation. Both Property H and Property F were acquired by Trust A prior to cohabitation. Company D was incorporated and Trust D was settled prior to cohabitation.
160Ms Danae is also an equal shareholder in Company F, the trustee of the Family Super Fund, and has a member account with the fund.
Findings as to ownership of entities
161I do not accept the respondent has held out a "false front" for the purpose of the proceedings. The structure of the entities forming the Group was well established prior to the parties commencing a relationship and well prior to the commencement of cohabitation as is evidenced by the chronology of events.
162The respondent's counsel submitted in opening that this was an enterprise run by its owners and they were organised and running it in this way long before the applicant ever came on the scene. I accept this submission.
163When Trust A was settled on 23 December 1996, the respondent and Mrs Fir were joint trustees with the respondent and his sister, joint beneficiaries. At the time of the creation of Trust A, Mrs Fir transferred her own funds, namely her share investment portfolio in to it.
164With respect to the 98 shares that were issued by Company A, I accept that the ASIC register contained an erroneous entry. The respondent deposed and I accept that the allotment of shares to Mrs Fir reflected her involvement in the business and her contributions. Primarily however, this was done on the advice of the respondent's accountant for asset protection. The respondent was concerned about having shares in his own name and thought a family trust providing Mrs Fir with legal control would offer the family better security over the business.
165This was put to Mrs Fir in cross-examination and she said she thought the reason the shares were allotted to her was also because she had been working with the respondent for a number of years, with little remuneration and the respondent wanted to give her something for everything she had done. She acknowledged security may have been considered. She thought it was also because she was an integral part of the business. The evidence of the respondent and Mrs Fir was consistent with each other and with the documents upon which the respondent relied.
166The allocation of the Company A shares took place in 2002, before the parties commenced a relationship and well before they commenced cohabitation. I consider the reason for the allocation was a combination of a desire to protect the assets for the family and also to reward Mrs Fir for her efforts in the company, which as I find below were not insignificant. I do not consider this to be a false front. Having regard to the chronology, I do not consider this to be designed to defeat the applicant's claim, although I acknowledge that to the extent the applicant suggested this was the case, she subsequently resiled from this position. She clarified her position to be that the structure established by the respondent using Mrs Fir is now able to be used to deny the applicant a proper claim.
167There was however no suggestion that this was intended to be an arrangement which was temporary in nature. This was a family arrangement between the respondent and Mrs Fir for joint purposes including an intention to protect and grow their assets. The arrangement was properly documented upon advice, and those documents are consistent with the stated intention of the respondent and Mrs Fir.
168The respondent relied upon the evidence of a number of witnesses who deposed to Mrs Fir's role with Business A. The evidence of these witnesses was unchallenged. The thrust of that evidence was that Mrs Fir played a significant role in the business and managed the financial aspects of it. Mrs Fir frankly expressed her opinions and at times they were decisive, for example in relation to the expansion of Business A's fleet. The witnesses spoke of Mrs Fir's intimate level of knowledge, her decisiveness and her authority. Witnesses described the respondent and Mrs Fir working as a team.
169[Mr M] was employed as a general manager of Business A between 2011 and 2013. He deposed to the respondent running the creative side of the business and Mrs Fir looking after the financial side. He further deposed to the financial strain Business A was placed under due to the high operating costs of the [Coastal Town A] operations and Mrs Fir made clear her opinion that the operations should be closed sooner than they were. [Mr M] recalled Mrs Fir made regular payments to Business A from her superannuation entitlements to keep the business funded.
170[Ms D], the Single Expert Witness described Mrs Fir's role and duties in the business and adopted a commercial salary of $85,000 inclusive of superannuation for her. Upon the evidence I find she was far more than an administrator with a salary package of $85,000 per annum. She was a trusted advisor to the respondent who provided significant guarantees and her own property as collateral for loans.
171I accept that Mrs Fir's involvement in the business was a significant one. Her relationship with the respondent was a close and valuable one and he trusted her to manage their property.
172Regarding the loan to service the Property A debt, the respondent acknowledged that the Business A had some good years between 2006 and 2011. He said he had to borrow funds from Mrs Fir, which she drew down from her account in the Family Super Fund. The respondent said the cash flow was tight. He explained Mrs Fir dealt with the financial matters and it was she who transferred money between entities. The respondent denied that the funds provided to him from the superannuation fund, was his money.
173The loan was not mentioned in Mrs Fir's 2011 will. However in Mrs Fir's will dated 12 August 2015 reference is made to the respondent being indebted to Mrs Fir for a loan in the sum of $750,000. This may have been a step taken by Mrs Fir to shore up the position in relation to the loan. However, I do not think it is part of a false front and upon the evidence I am not able to find that the funds were not borrowed from the Family Super Fund.
174I accept the evidence of the respondent and Mrs Fir, which is largely supported by Mr J that Mrs Fir was involved in the purchase of the Lamborghinis, Property I and the overseas properties.
175The evidence of the respondent's witnesses was overwhelmingly to the effect that Mrs Fir's involvement in the business was a significant one. She was not merely part of the financial structure. Mrs Fir derived significant benefit from the income of Business A, but also put in considerable effort.
176These witnesses confirmed, although it is not in dispute that the applicant had no involvement in Business A.
177At times the respondent referred to the motor vehicles as his own. In his dealings with the bank when seeking finance he appears to have referred to assets being his own and those of the Group interchangeably. I do not interpret this as the respondent holding himself out as the sole owner of the property in question. It seems to me that this use of language was a natural and reasonable way of referring to the property of the Group in the respondent's dealings with the bank, noting that it was he and not Mrs Fir who dealt with the bank.
178As to Annexure F, I am not prepared to read into this document the interpretation submitted by the applicant, namely that the respondent held out that the assets of Trust A were his own. The document lacks detail; it refers to ownership by various entities and contains no values. It is not reliable evidence in this respect.
179It is relevant that the applicant made no direct financial contribution to the respondent's assets or to those within the Group and had no involvement in the respondent's business.
180Having considered the evidence and the submissions of both parties it has not been established to me on the balance of probabilities that the respondent is the owner of the entities referred to by the applicant or their assets. I find that they are owned in accordance with their legal ownership.
THE ASSETS AND LIABILITIES
181On the applicant's case the total net assets of the parties including their superannuation interests amounted to $11,217,885. On the respondent's case the total net assets including his inheritance and the superannuation interests are $8,406,413.
182Each party provided a schedule of assets and liabilities as they were not able to agree a joint schedule. The main difference between the two schedules is that of the applicant does not include the inter-entity loans, whereas that of the respondent does. Having regard to my findings as to the ownership of the entities, the schedule below has been drawn from Exhibit 26 which was the respondent's schedule and includes the inter-entity loans which are properly recorded in the financial statements of the various entities. The schedule is structured in a way to aid the assessment of contributions with the assets grouped together in various categories. From the schedule at the conclusion of the evidence certain items remained in dispute and are as set out below.
The Honda motor vehicle
183The applicant asserts this vehicle belonging to the respondent is worth $55,000. The respondent says its value is $35,000. Neither party provided a valuation. The respondent says that in any event, on his case and with the approach he says the Court should take as to contributions, the discrepancy is not important.
184It is usually incumbent upon the person asserting the value of chattels to provide evidence to support the assertion (Khademollah v Khademollah (2000) FLC 93-050).
185The vehicle is in the respondent's possession. He is more likely to be aware of its condition and value. I intend to adopt the respondent's value of $35,000 for this vehicle.
The vintage motor vehicle
186The applicant asserts this vehicle owned by the respondent is worth $60,000. The respondent says its value is $40,000. The position with respect to this vehicle is much the same as the [Honda motor vehicle] referred to above. Applying the same reasoning I shall include a value of $40,000 in the schedule.
Paid legal costs
187The applicant has paid legal costs of about $276,000. The source of funds was the applicant's income, savings and borrowings.
188The respondent has paid legal costs of $408,000. The source of funds of the respondent's legal costs was his personal funds. The respondent includes both parties' paid legal costs on his schedule, but the applicant does not. In my discretion I intend to include the legal costs paid by both parties in the schedule below. I will also include the parties' respective liabilities relating to legal costs. I take this approach in accordance with the Full Court decision in Chorn and Hopkins (2004) FLC 93-204.
Loan from Mrs Fir to respondent
189The applicant does not accept that the respondent owes Mrs Fir's estate $800,000.
190The respondent borrowed funds from Mrs Fir to service the loan in respect of Property A. To lend him these funds, Mrs Fir drew down on her member account in the Family Super Fund in 2008, $250,000 in 2009, $250,000 in 2010, $200,000 and in 2012, $100,000 which the respondent applied to pay interest in respect of the Property A debt.
191The respondent deposes and I accept that Mrs Fir's estate requires repayment of this amount. It properly appears as a liability of the respondent.
Respondent's credit cards
192The respondent has credit card debts of $612, $99 and $49,848. There was little evidence about these liabilities. They were not challenged in cross-examination and I therefore intend to include them as it is proper to do so in identifying the existing property of the parties.
Company A
193Company A was valued by Ms D in the sum of $2,846,000. Ultimately that valuation was agreed for the purpose of these proceedings.
194Having regard to my findings above, the respondent's legal ownership is 2% and Trust A is the owner of 98%. The respondent's 2% share is worth $57,000 and that of Trust A is worth $2,789,000.
The respondent's inheritance
195The respondent includes his inheritance in the schedule as his property although the applicant does not. The respondent submits that the applicant seeks to characterise it as a financial resource, but at the same time seeks to include the underlying assets as the property of the respondent.
196The applicant submits that the respondent's inheritance is a resource and she does not seek to take it into account accepting that it was acquired after the parties separated. The applicant rejects the submission that she includes the underlying assets pointing out that Mrs Fir's Suburb A property is a most significant asset in her estate and has not been included in the schedule.
197Upon the death of Mrs Fir the respondent became entitled to a one half share of her estate. It is not a financial resource, it is property to which he is entitled. There is no basis to exclude this property when identifying the interests of the parties in their property. Section 205ZG of the Act is directed to all of the existing legal and equitable interest of the parties in their property without exclusion (Holland v Holland [2017] FamCAFC 166).
Super Trust Z
198This item appears as an asset of the applicant as she can access her superannuation. In her financial statement filed 23 June 2016, the applicant deposes the value of her interest in Super Trust Z to be $638,911. In her schedule of assets and liabilities it is stated the value of this asset is $589,854. There was no evidence as to the difference. After the conclusion of the evidence the parties agreed substituted amounts as to the applicant's bank accounts, but there was no agreement as to any change to the applicant's sworn evidence as to the value of her interest in this fund.
199I find the property of the parties to be as set out in the schedule below.
200The schedule applies the same numbering as Exhibit 26 in the left hand column. In preparing the schedule I have deleted entries which are either nil or no longer applicable and rounded amounts up or down to the nearest dollar.
| 1 | Joint | |
| 2 | Assets | |
| 4 | NAB account[XX] ([Property A] term deposit) | $2 |
| 5 | NAB account [XX] ([Property A] rent account) | $2,988 |
| 6 | NAB account [XX] ([Property A]) | -$1,154,569 |
| 7 | [Property A] debt total | -$1,151,579 |
| 10 | [Mr Danae] | |
| 11 | [Property D] | $1,700,000 |
| 12 | [Property B] | $310,000 |
| 13 | Furniture (and rugs in applicant's possession) | $9,100 |
| 14 | Commonwealth bank streamline account [XX – Mr Danae] | $900 |
| 15 | Watches | $6,500 |
| 16 | [The Honda motor vehicle] | $35,000 |
| 17 | [The vintage motor vehicle] | $40,000 |
| 18 | Motorcycle (including Vespa) | $7,500 |
| 19 | Paid legal fees | $408,000 |
| 20 | NAB new account [XX] | -$99,092 |
| 21 | NAB account [XX] ([Property D]) | -$69,152 |
| 22 | [Trust A] beneficiary loan | -$434,799 |
| 23 | Respondent's potential inheritance from estate of [Mrs Fir] | $2,658,961 |
| 24 | The estate of the late [Mrs Fir] | -$800,000 |
| 25 | NAB credit card [XX] | -$70 |
| 27 | AMEX credit card [XX] | -$21,461 |
| 28 | DJ Amex credit card [XX] | -$613 |
| 29 | NAB credit card [XX] ([Business A]) | -$100 |
| 30 | Westpac credit card [XX] ([Business A]) | -$49,848 |
| 31 | [Mr Danae] beneficiary loan - [Trust D] | -$675,683 |
| 32 | Total | $3,025,143 |
| 33 | [Ms Coley] | |
| 35 | NAB iSaver [XX] | $15,822 |
| 36 | NAB classic [XX] | $408 |
| 37 | NAB gold [XX] | $23,073 |
| 38 | [The Mercedes-Benz motor vehicle] | $44,000 |
| 39 | Shareholdings portfolio | $11,108 |
| 40 | [Company C] interest | $151,000 |
| 41 | Furniture and personal effects | $10,460 |
| 42 | Jewellery | $34,250 |
| 43 | Various artwork | $21,000 |
| 44 | Paid legal fees | $276,000 |
| 45 | [Super Trust Z] | $638,911 |
| 46 | NAB VISA [XX] | -$3,465 |
| 47 | Total | $1,222,567 |
| 48 | [Trust D] | |
| 49 | Commonwealth bank business transaction account [XX] | $26 |
| 50 | Westpac account [XX] | $6,896 |
| 51 | Other assets | $7,786 |
| 52 | GST | $6,637 |
| 53 | Beneficiary loan - [Mr Danae] | $675,683 |
| 54 | [Property K] | $700,000 |
| 69 | Westpac bank loan [XX] | -$500,000 |
| 71 | Westpac bank Loan [XX] | -$350,000 |
| 72 | [Company A] | -$706,400 |
| 73 | [Company D] | -$560,224 |
| 74 | [Trust A] | -$507,740 |
| Total | -$1,227,336 | |
| 56 | [Company A] | |
| 57 | Net assets as per [Ms D] valuation | $57,000 |
| 58 | [Lancia motor vehicle] | $160 |
| 59 | Total | $57,160 |
| 60 | [Company D] | |
| 61 | Net assets as per [Ms D] valuation | $1,727,000 |
| 62 | [Company E] | |
| 63 | Net assets as per [Ms D] valuation | $109,000 |
| 65 | [Company G] | Nil |
| 78 | Superannuation | |
| 79 | Commonwealth bank cash investment account [XX] | $1,328 |
| 80 | ANZ cash investment account [XX] | $63,246 |
| 81 | [The Family Super Fund] | $1,659,344 |
| 82 | [Property C] (24.15%) | $483,000 |
| 83 | HSBC [XX] | $24,995 |
| 84 | Westpac account [XX] | $3,297 |
| 85 | Westpac account [XX] | $213,000 |
| 86 | TOTAL SUPERANNUATION | $2,448,210 |
| 87 | [Trust A] | |
| 88 | [Property H] | $2,540,000 |
| 90 | [overseas property #1] | $385,000 |
| 91 | [overseas property #2] | $385,000 |
| 92 | Commonwealth bank account [XX] | $224 |
| 93 | Westpac account [XX] | $9,945 |
| 94 | Other current assets | $4,906 |
| 95 | [Trust D] | $507,740 |
| 96 | [Ms Danae] beneficiary loan - [Trust A] | -$42,500 |
| 97 | [Mr Danae] beneficiary loan - [Trust A] | $434,799 |
| 98 | Net assets as per [Ms D] valuation | $2,789,000 |
| 99 | [Lancia motor vehicle] | $7,840 |
| 100 | NAB tailored home loan account [XX] | -$463,026 |
| 102 | Westpac bank loan [XX] | -$900,000 |
| 103 | Flexi account [XX] | -$70,152 |
| 104 | [Mrs Fir] | -$1,640,638 |
| 105 | Total [Trust A] | $3,948,138 |
| 107 | Summary | |
| 109 | [Mr Danae] and [Ms Coley] – [Property A] debt | -$1,151,579 |
| 110 | [Mr Danae] | $3,025,143 |
| 111 | [Ms Coley] | $1,222,567 |
| 112 | [Trust D] | -$1,227,336 |
| 113 | [Company A] | $57,160 |
| 114 | [Company D] | $1,727,000 |
| 115 | [Company E] | $109,000 |
| 116 | [Company G] | Nil |
| 117 | [Trust A] (50% of $3,948,138) | $1,974,069 |
| Total | $5,736,024 | |
| 119 | [The Family Super Fund] | $2,448,209 |
201I find the total of the existing interests of the parties in their property to be $5,736,024.
IS IT JUST AND EQUITABLE TO MAKE A PROPERTY ORDER?
202The parties separated over five years ago. The parties agree it is just and equitable to make a property settlement order and both seek such an order. An adjustment to the parties' property interests is required because the parties intermingled their finances when they purchased Property A and in doing so, incurred a liability by which they are still bound. To separate their financial affairs, they require orders adjusting their property interests.
203The applicant entered the relationship with significant assets which she applied in part to the purchase of Property A. Those assets are now lost to her while the respondent's financial position has improved. He retains the assets he had at that time which have increased in value, and he has acquired assets. He has also incurred certain liabilities. In these circumstances I find it is just and equitable to make a property settlement order.
CONTRIBUTIONS
204It is necessary to identify the contributions of the parties. At the commencement of cohabitation the applicant owned a one half interest in Property E. This property had been purchased in 2003 for $585,000 and was unencumbered. The applicant also owned the Suburb A property.
205The applicant had savings of $97,337. As trustee for Trust B, she held one share in Company B which held 174,538 shares in Company C that she deposed were worth $775,222.
206The applicant owned a Mercedes-Benz motor vehicle worth $50,000, a wine collection worth $10,000 and some artwork worth about $21,000. She owned 343 AMP shares and her superannuation entitlements in the [Coley Super Fund] were worth $224,111.
207The respondent deposed that to his knowledge at the commencement of cohabitation he had net assets and superannuation worth approximately $1.7 million. The respondent deposed that Annexure F to his trial affidavit is a schedule of his assets and liabilities at the time the parties commenced cohabitation.
208The applicant disputes the respondent's assertion as to his initial contributions. Annexure F contains assets acquired during the relationship for example it includes the overseas properties, although certain entries have been highlighted and marked "N/A" which presumably indicates that they are not applicable to his calculation of his initial contributions. I refer above to the evidence concerning Annexure F. It is of little assistance in identifying the respondent's assets and liabilities at the commencement of cohabitation and their values.
209The applicant sets out what she says were the respondent's initial contributions in her trial affidavit although she deposes to be unsure of the value of any savings and certain debts that the respondent may have had. Upon the evidence I am unable to make a finding as to the precise value of his assets at the commencement of cohabitation.
210The applicant submits her initial contributions were significantly greater than those of the respondent. I accept this submission.
211During the parties' relationship the applicant earned a substantial income which she deposes was as much as five times greater than that of the respondent. The parties' respective incomes for the duration of their relationship per their respective tax returns were as follows:
Year Ended
Applicant
Respondent
30 June 2005
$261,768
$54,986
30 June 2006
$226,299
$54,986
30 June 2007
$325,743
Not known
30 June 2008
$77,798
Not known
30 June 2009
$441,213
$146,887
30 June 2010
$207,278
$186,555
30 June 2011
$355,473
$81,477
30 June 2012
$220,095
See below
212As to the respondent's income in the year ended 30 June 2012 the applicant deposes it was a loss of $22,176. The respondent deposes to an income of $106,397.
213The parties commenced living together in August 2005. They shared the cost of living.
214The parties subsequently moved into Property D. The applicant paid for a cleaner and otherwise undertook cleaning, although the respondent did his own laundry. The respondent paid the outgoings and utilities for Property D including the rates. The parties shared the costs of holidays equally.
215The parties retained their own incomes and bank accounts. They shared the cost of groceries. In relation to Property D the applicant offered to repay the respondent's outstanding loan of about $200,000 but he declined her offer.
216In 2008 the applicant sold her interest in Property E and received $325,000 which she deposited in a bank account.
217In June 2008 the parties settled their purchase of Property A for about $7.9 million. The applicant suggests that she had reservations about the purchase, and the respondent was the driver behind the purchase. That was not established to me upon the evidence.
218I am satisfied both parties entered into the contract to purchase Property A willingly, having found the home they wished to acquire. The parties discussed how they would finance the purchase of the property apart from borrowings. That discussion included the financial controller of Company C. It was necessary for either the applicant or the respondent to sell their home. The respondent could not sell Property D because it was security for a number of liabilities in respect of properties acquired by the respondent or entities in which he had an interest. The applicant's unencumbered Suburb A property was sold.
219To finance Property A the parties had obtained a pre-approved funding for $8.25 million. The respondent spoke of obtaining funding proposals from a series of lenders which gave them the capacity to go to the auction with some confidence. The pre-approval was based upon the financial circumstances of both parties and the Group.
220The respondent said he bid at the auction because both parties believed they had the capacity to afford the property. Both of their businesses were giving substantial returns. They were earning good money and times were really good.
221The deposit was paid by the applicant. The respondent did not have funds to pay the deposit. At the time the income from the maintenance business was applied to loan repayments in respect of properties purchased by him or entities in which he had an interest. In cross-examination the respondent agreed that at the time he was buying properties for their future financial benefit.
222The deposit of $390,000 was paid by the applicant. The parties took out three loans with NAB ("the Property A loans") as follows:
•a $5,000,000 four year loan with interest paid in advance and fixed at 8.35%;
•a $1,000,000 loan with interest paid in advance and fixed at 8.55%; and
•a $2,330,000 variable interest loan with interest paid in arrears.
223The Property A loans were secured by mortgages registered on the title to Property B, Property D, the Suburb A property and Property A.
224A guarantee and indemnity was given by Company D and Trust D in respect of which Mrs Fir was co-guarantor. A fixed and floating charge was given on the whole of the assets of Company D, which was agreed to by Mrs Fir.
225In June 2009 the net proceeds of the applicant's Suburb A property of $1,594,930 were applied towards part repayment of the $2,330,000 variable interest portion of the Suburb A loans.
226The respondent conceded that as a consequence the debt was reduced and consequently the interest payments were reduced. He said he offered the applicant a 50% interest in Property D although he acknowledged that property was security for a number of loans at the time.
227The parties then obtained a further NAB loan of $730,000 to pay the balance of that facility and they equally contributed to that loan.
228In 2010 the applicant paid $365,000 off the $730,000 loan facility from her savings, leaving the respondent to meet the balance of this facility.
229The parties each met one half of the repayment on the other two loan facilities.
230In 2013 the respondent's portion of the NAB loan of $365,000 was restructured into his own name which he has since paid.
231In June 2011 the $1 million fixed interest facility was reduced to $850,000 from funds accumulated in the joint rent account for Property A.
232Between 2008 and 2012 Mrs Fir drew down from her member balance in the Family Super Fund sums totalling $800,000 which were applied to pay interest in advance on Property A. As discussed above, these sums constitute borrowings by the respondent from Mrs Fir and the respondent's loan of $800,000 appears in the schedule above.
233The parties shared equally the costs of Property A including rates, taxes, utilities, maintenance and home insurance premiums. The property was rented out and each party claimed tax relief having shared equally the shortfall between the rental payments and the mortgage repayments.
234Neither party made any direct financial contribution to the business of the other. The respondent did some maintenance for the office of Company C and lent the office artwork and furniture.
235The applicant's position is that she indirectly contributed to the respondent's business by reason of the financial support provided by her during the relationship and I refer to this further below.
236Trust A acquired Property H and Property F in 2005 with borrowings. The repayments were met by the respondent's maintenance business both before and during the parties' relationship including after Property A had been purchased and the applicant had applied her capital to its acquisition.
237Shortly before cohabitation Company A purchased Property I. During cohabitation Company A acquired two Lamborghinis. In 2008 Company A purchased Property J and in 2009 sold it at a profit and Trust D purchased Property K. Property I was subsequently sold at a profit and the proceeds applied to Business A by way of a loan. The applicant made no direct financial contribution to properties acquired by the respondent during the relationship.
238After the parties separated the applicant continued to live in Property D for about four years. The respondent met the costs of the property and the applicant lived there rent free. The parties each continued to meet a half share of the loans in respect of Property A until its sale.
239Property A dropped significantly in value. On 6 May 2016 the parties accepted an offer for the property in the sum of $4.8 million. I refer below to the circumstances of the sale when considering matters pursuant to s 205ZD(3)(o).
240The parties continue to meet equally the balance of the Property A loans. As at trial that balance was $1,154,569.
241In October 2013 the applicant was diagnosed with depression. She resigned as a director of Company C in February 2015.
242The respondent occupied Property B.
243On 20 November 2015 Mrs Fir died. The respondent became the appointor of Trust D and the joint appointor and sole trustee of Trust A. The respondent's inheritance from Mrs Fir's estate is potentially $2,658,961 excluding the sum of $800,000 he owes to the estate.
244Property D was sold in July 2017.
Approach to the assessment of contributions
245The applicant submitted that the parties' contributions should be assessed globally. The respondent submitted their contributions should be assessed on an asset‑by-asset basis.
246The global approach is generally regarded as the more appropriate. However, the Court may adopt an asset-by-asset approach if it considers this to be more appropriate in the circumstances.
247Each approach is permissible depending on the circumstances: Norbis v Norbis (1986) 161 CLR 513, Lenehan and Lenehan (1987) FLC 91-814 and Zyk and Zyk (1995) FLC 92-644.
248The Full Court (Nicholson CJ, Fogarty and Baker JJ) said in Zyk and Zyk (supra) at 82,509-82,510:
The global approach enables the Court to assess the contributions aspect of the s 79 exercise in an overall way by considering the parties' contributions to their property as a whole although factoring into that exercise the circumstance, if it be so, that they may have made varying contributions to the total property at trial or which formed part of the history of their property during the marriage. It is the generally preferred and the generally adopted approach. It enables a broad approach to be taken to the varying contributions of the parties over the years of their marriage and in particular it usually has the advantage of more easily dealing with and giving proper recognition to paras. (b) and (c) contributions. However, where the contributions to the components to the total property are disparate, caution needs to be exercised in this approach and the overall conclusion tested against the requirement that the orders be "just and equitable". Lenehan is an example of a case where difficulties arose for that reason.
The asset by asset approach enables the Court to assess separately the parties' contributions to particular assets or groups of assets. It is the less preferred approach largely because it can at times be an artificial exercise and also because it can create difficulties in the proper evaluation of paras. (b) and (c) contributions. But there are a number of circumstances where it may be appropriate to do so, for example an inheritance received post separation, or where the financial relationship of the parties during the marriage was such that they treated some property as exclusively the property of one party to which the other party made no, at least no para. (a), contributions to it. It may be convenient in cases like that to treat that property separately rather than assess the overall contributions of the parties to the totality of their property.
However, the trial Judge has a discretion as to which course to adopt and does so having regard to what appears more suitable to the circumstances of the particular case.
249The respondent relied on the Full Court decision in McMahon and McMahon (1995) FLC 92-606. The parties in that matter were married for five years and latterly in the marriage they separated their finances. The Full Court determined that an asset‑by-asset approach was preferable. The Full Court stated at page 82,043:
In our view, the particular circumstances of this case made an asset‑by‑asset approach preferable to a global approach.
The short duration of and the unhappy nature of the marriage, coupled with the parties' strict division of assets and their method of dealing with them lent itself to an asset‑by‑asset approach, particularly where they had separately identified another group of assets as joint.
250The respondent also relied on the decision of the Full Court in Zaruba and Zaruba (2017) FLC 93-776 where the Full Court confirmed that the asset‑by-asset approach adopted by the Trial Judge was in the circumstances of that case appropriate.
251This was a short relationship with no children. On the applicant's case the relationship endured for over seven years, on the respondent's case it endured for six years and eight months. I have found that the parties' de facto relationship commenced when they began living together in August 2005 and accordingly the relationship was for six years and eight months.
252Both parties contributed to Property A. The nature of their contributions to the acquisition of that property, were quite different in that the applicant applied her savings to its purchase and also thereafter the proceeds of her Suburb A property. The respondent provided his assets and those of the Group as security for the significant amount borrowed and I refer to this further below. Otherwise the parties' assets remained separate. In relation to Property A the parties met an equal share of the loan repayments, both during their relationship and after separation. Each claimed a share of the loss in their tax returns. The respondent incurred a loan for interest paid by him.
253During their relationship the parties maintained separate bank accounts and each contributed to their living expenses. The parties made financial decisions independently of each other.
254The applicant made no direct financial contribution to the assets of the respondent or those of the Group. The unchallenged evidence of the respondent was that the applicant did not wish to discuss business when they were together and she was not involved in his financial decisions.
255Mrs Fir was closely involved with the respondent in the business prior to the parties' relationship commencing and she remained so during the relationship.
256The respondent made no contribution to the applicant's assets except some of a very minor nature by way of some maintenance and the loan of some artwork.
257Although an asset-by-asset approach might assist in the assessment of contributions, I am of the view, in my discretion, that the appropriate approach is to consider very carefully the parties respective contributions to the various assets or categories of assets, but then to assess those contributions globally. I do this primarily because the adoption of an asset-by-asset approach gives rise to a risk that the applicant's financial contributions to Property A and the impact of them on the respondent's financial position may be overlooked.
258It cannot be said that the parties' finances remained strictly divided during the relationship. They jointly embarked on the venture of acquiring Property A. To fund the acquisition, pre-approval of finance was obtained based on the financial position of both parties and in respect of the respondent that included his assets and the assets of the Group which were provided as security for the loan. The financial contributions by the applicant towards Property A benefited the respondent in that he did not make similar financial contributions and was able to retain his income and apply it to the repayment of loans in respect of properties acquired prior to the relationship and to the acquisition of properties during the relationship within the business structure. When the respondent sold Property I, the proceeds were retained within the business structure and loaned to Business A.
259Further, I have included in the schedule above a liability incurred by the respondent to meet his share of the Property A repayments.
260In referring to the "current pool" the applicant's submissions are twofold:
•firstly, significant capital gains were made during the relationship which she says should be properly attributed to market forces rather than the contribution of either party; and
•secondly, the respondent was able to acquire by borrowing inside of his business structure at a time when the applicant was servicing significant debt in the parties' joint names.
261The applicant relies on Bilous v Mudaliar & Anor (2006) 35 Fam LR 55.
262In Williams v Williams [2007] FamCA 313 the Full Court made reference to Bilous (supra) and also Kardos v Sarbutt (2006) 34 Fam LR 550.
263In Williams (supra), the Court said at [26]:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
264In assessing considerations globally I will be mindful that many of the assets owned by the respondent and the entities in which he was involved were acquired prior to the commencement of cohabitation and prior to the commencement of their relationship. I will also be mindful of the applicant's acknowledgement that she made no direct financial contribution to them. At the same time I will recognise the "myriad" of contributions made by each of the parties during their relationship.
ASSESSMENT OF CONTRIBUTIONS
265The parties' property is conveniently set out in categories in the schedule above. Those categories are summarised at lines 109 to 117 of the schedule. I consider those as follows:
Mr Danae and Ms Coley (Line 109)
266The parties have a joint liability of $1,151,579, being the Property A debt. The applicant made a greater contribution to the acquisition of Property A.
267Although the parties' joint assets diminished with the resultant liability their respective contributions to their joint property must still be recognised. In Browne v Green (1999) FLC 92-873 at 86,359, the Full Court agreed that:
… contributions by a party do not necessarily have to produce a positive result for that party's contributions which fall within [paragraphs 79(4)(a) and (b) of the Family Law Act] to be taken into account.
268The Full Court recognised that a "practical difficulty" arises in the recognition of contributions to a project which has failed, or to property which may no longer exist, if the overall pool of property ultimately available for division between the parties has been reduced by the failure of the project in question, or the absence of the property previously in existence and to which project or property, the contributions have been made. In these circumstances it is necessary to consider whether a party, or alternatively both parties should as a matter of justice and equity bear the financial loss in question. In determining that question reference is made to the principles expressed by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092. Neither party suggested that the other should bear sole responsibility for the liability associated with Property A. The applicant suggested that she was reluctant to purchase it, but that was not established on the evidence. I am satisfied that both parties were willing participants in the purchase of Property A and that there was no reckless, negligent or wonton conduct on the part of the respondent that would fall within the Kowaliw (supra) principles.
269The respondent refers to the applicant's conduct in relation to the acceptance of offers for Property A and I refer to that when considering matters relevant to s 205ZD(3)(o).
270An important consideration is the disparity between the parties' respective contributions to Property A, with the applicant contributing about $1.9 million from her assets, which was not matched by the contributions of the respondent. In contrast the respondent borrowed funds to meet his repayments and that loan remains as a debt against his other property interests.
Mr Danae (Line 110)
271The total value of the respondent's property is $3,025,143. This includes Property D valued at $1.7 million. The applicant made non-financial contributions to this property. This was conceded by the respondent's counsel who, in opening, suggested that this asset could have been included in the category of joint assets. It remains however in the category of the respondent, but it is not in dispute that the applicant made contributions to it. She made no direct financial contribution to the remainder of the respondent's property noting that the respondent's property includes his inheritance from the estate of Mrs Fir to which he became entitled after the parties separated.
Ms Coley (Line 111)
272The total value of the applicant's property is $1,222,567. The respondent made only very minor contributions to this property as set out above.
Trust D (Line 112)
273Trust D has a liability of $1,227,336 arising primarily from loans secured over properties and loans funded by inter-entity loans.
Company A (Line 113)
274Company A has a value of $57,160 being the value of the respondent's interest in the company. The applicant made no direct financial contribution to Company A.
Company D (Line 114)
275The value of the net assets in Company D is $1,727,000. The applicant made no direct financial contribution to Company D.
Company E (Line 115)
276The value of Company E is $109,000. The applicant made no direct financial contribution to Company E.
Trust A (Line 117)
277The value of 50% of Trust A is $1,974,069. The applicant made no direct financial contribution to the Trust A.
278At the commencement of cohabitation the applicant had assets worth over $3 million. The respondent asserts he had net assets and superannuation worth approximately $1.7 million although that is disputed by the applicant and I cannot say with certainty what the value of his assets was. Annexure F does not assist me greatly. I am satisfied however that the applicant made significantly greater initial contributions than the respondent. During the relationship the applicant's assets were applied to the purchase of Property A, a joint venture which resulted in a significant loss for which the parties are jointly liable. The respondent retained his assets and some increased in value. He applied his income to the acquisition of property and debt reduction within his business structure. He incurred a loan with respect to the interest of the loan for Property A. After the parties separated, the respondent made significantly greater contributions. He inherited significant funds from Mrs Fir's estate, which are included in the schedule above. The applicant occupied Property D at no cost for about four years.
279The assessment of contributions is not a mathematical exercise and I have not approached it as such.
280It is necessary to assess contributions holistically. In Dickons v Dickons (2012) 50 Fam LR 244 the Full Court said at [24]:
… However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
281I have considered the parties' differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to the date of trial. In my assessment by reason of contribution the percentage division should be 40% to the applicant and 60% to the respondent.
282The effect of this finding as to contribution is that the applicant is entitled to receive property to a value of $2,294,410 and the respondent is entitled to receive property to a value of $3,441,614.
SECTION 205ZD(3) FACTORS
283The relevant matters to be taken into account are:
(a)the age and state of health of each of the de facto partners
284The applicant is 57 years of age. She is in good health. After separation she suffered from depression and was prescribed medication. She continues to take medication for depression and high blood pressure. The respondent is 53 years of age and is in good health.
(b) the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment
285The applicant is unemployed. Her average weekly income is $344. She has the property as set out above.
286The applicant's health difficulties have not impacted upon her capacity for gainful employment. Since resigning as a director of Company C in February 2015, the applicant was unable to find employment in the retail industry. She undertook a [media studies] course and a [nursing] course. She is not qualified to be a [nurse].
287She approached friends for employment, but has not made any formal applications for employment. She previously earned between $200,000 and $300,000 a year. In the event she qualified as a nurse she is likely to earn about $45,000 per annum. Latterly she has not sought employment. The applicant's father became unwell and she moved to live with her parents to reduce her outgoings and to assist them.
288The respondent is a business proprietor. He deposes to having an average weekly income of $1,500. He has significant business interests from which he generates an income. His property includes a share in the estate of Mrs Fir. By way of a financial resource the respondent has significant superannuation benefits of $2,448,209. The applicant has superannuation entitlements of $638,911.
(d)commitments of each of the de facto partners that are necessary to enable the partner to support —
(i) himself or herself, and
(ii) a child or another person that the party has a duty to maintain
289The parties have the commitments as set out in their financial statements. The parties each meet one half of the repayments in respect of the Property A debt.
(e)the responsibilities of either party to support any other person
290Neither party has any responsibility to support any other person.
(f)subject to subsection (4), 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
291Neither party is eligible for a pension allowance or benefit. The applicant is entitled to receive her superannuation benefits as she has attained the age of 55 years. The parties have the superannuation entitlements mentioned above.
(g)a standard of living that in all the circumstances is reasonable
292The parties enjoyed a comfortable standard of living during their relationship. The applicant's standard of living has since deteriorated by reason of her commitments with respect to the Property A debt.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
293The respondent refers to the circumstances of the sale of Property A and asserts that the applicant neglected, or refused to sign an offer in a timely manner with the result that a prospective purchaser at $5.5 million was lost. The respondent relies on the unchallenged evidence of [Ms J], his real estate agent who also deposed to that delay. Property A dropped significantly in value during the time of the Global Financial Crisis.
294The parties received an offer for the property at $5.5 million dated 9 March 2015 which was subject to the approval of finance.
295At the instigation of the applicant, the parties counter offered at $5.9 million on 16 March 2015. The purchaser came back with a further counter offer of $5.5 million on 17 March 2015 with a settlement date of 30 June 2015. The position becomes somewhat confusing in that the respondent said he emailed the applicant on 18 March 2015 urging her to accept the offer. However, in cross-examination, the applicant's counsel referred the respondent to Annexure K to his affidavit from which it is apparent that the offer was signed by the respondent on 16 March 2015 and signed by the applicant on 17 March 2015.
296Ms J deposed that the purchaser had made an offer on a property in [Tasmania] which had been accepted and therefore his offer on Property A which was subject to finance was withdrawn and he sought to resubmit his offer on Property A subject to the sale of his [Suburb F] property. Ms J deposes both parties accepted the subject to sale offer, but ultimately the buyer was not able to achieve the price he wanted for the Suburb F property and Property A fell away.
297Property A was subsequently sold for $4.8 million, a $700,000 difference in the price originally offered.
298I cannot be certain the reason the offer fell away was the applicant's delay.
299Even if I were satisfied that the loss was sustained partly or wholly as a result of delay on the part of the applicant, I am not persuaded that it amounts to negligent, reckless or wonton conduct on her part within the Kowaliw (supra) principles referred to above. I decline therefore to make any adjustment as a consequence of this circumstance.
300The applicant's counsel seeks to have taken into account that the applicant faces an application for costs by Mrs Fir's estate. When the applicant commenced these proceedings in 2014, Mrs Fir was the second respondent. Subsequently on 13 February 2017 the proceedings insofar as they related to Mrs Fir were dismissed.
301The costs application will have to be determined on its merits and I do not consider this to be a liability of such certainty that it should be taken into account here.
ASSESSMENT OF SECTION 205ZD(3) FACTORS
302In my assessment having regard to the s 205ZD(3) factors as a whole I consider an adjustment in favour of the applicant of 7.5% is appropriate. 7.5% of the parties' property is $430,201. The most significant factors warranting the adjustment are the respondent's financial resource by way of his superannuation and the parties' respective earning capacities.
JUST AND EQUITABLE
303The overall distribution of property will be 47.5% to the applicant and 52.5% to the respondent.
304The total of the parties' property is $5,736,024. The applicant's entitlement is $2,724,611. The respondent's entitlement is $3,011,413.
305The applicant retains her property, the total of which is $1,222,567 as listed at line 111 of the schedule at paragraph 200 above. She retains one half of the Property A debt that share being a liability of $575,789.
306The respondent retains the following property.
[Mr Danae] (line 110)
$3,025,143
[Trust D] (line 112)
-$1,227,336
[Company A] (line 113)
$57,160
[Company D] (line 114)
$1,727,000
[Company E] (line 115)
$109,000
[Trust A] (line 117) (50% share)
$1,974,069
Total
$5,665,036
307The respondent retains one half of the Property A debt being $575,790.
308If each party retains the property as set out above the applicant will retain property to a net value of $646,778. The respondent will retain property to a net value of $5,089,246. To achieve the percentage division ordered, the respondent will have to pay to the applicant the sum of $2,077,833.
309The actual amount to be paid to the applicant will be that which gives effect to the percentage division which I have determined is just and equitable. That amount will be calculated by reference to the schedule at paragraph 200 above and the amount of the Property A debt at the date of division.
310The applicant does not own a home, but will be able to acquire one if she chooses to do so.
311The respondent owns a modest home and retains property comprising his interest in the business structure and also significant superannuation entitlements.
312In the context of this relationship and having regard to the nature, form and characteristics of the parties' contributions to the property to be divided and the prospective factors, I am satisfied that the orders I propose to make are just and equitable.
313I am unsure how the parties intend to deal with the Property A debt. In her orders sought the applicant proposes that the respondent refinance the loan. In his orders sought the respondent recites that the shortfall resulting from the sale of Property A be borne equally between the parties.
314The calculations above take into account that each party is responsible for payment of one half of the Property A debt. The parties may wish to consider their options in this respect. The respondent wishes to be heard as to orders. I therefore propose to give both parties an opportunity to consider the findings set out above and to confer with a view to submitting a joint minute of proposed orders to give effect to these reasons.
THE PROPOSED PROPERTY ORDERS
315The proposed orders are summarised as follows:
1Within 30 days the respondent pay to the applicant such sum as to provide a division of the property of the parties 47.5% to the applicant and 52.5% to the respondent taking into account the property to be retained by each of them as provided for in paragraphs 305 and 306 of these reasons save and except the amount of the [Property A] debt shall be the actual amount as at the date of division.
2The applicant retains the property referred to at paragraph 305 above.
3The respondent retains the property referred to at paragraph 306 above.
I certify that the preceding [315] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
Associate
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