Conway and Jordan - [2016] FCCA 1175

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONWAY & JORDAN

[2016] FCCA 1175

Catchwords:
FAMILY LAW – Property – 24-year de facto relationship – two adult children – equal financial, non-financial and home-maker contributions throughout the relationship – no adjustment under s.90SF(3) of the Family Law Act 1975 (Cth) – net assets of the relationship divided equally between the parties – equalisation of the superannuation interests of the parties.

Legislation:

Family Law Act 1975, ss.4, 90MT, 90SF, 90SM

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Beklar & Beklar [2013] FamCA 327
Elgin & Elgin [2015] FamCAFC 155
Kennon v Spry (2008) 238 CLR 366

Applicant:

MR CONWAY

Respondent:

MS JORDAN

File Number:

MLC 11740 of 2014

Judgment of:

Judge Wilson

Hearing date:

17–18 November 2015

Date of Last Submission:

18 November 2015

Delivered at:

Melbourne

Delivered on:

17 May 2016

REPRESENTATION

Counsel for the Applicant:

E. Taghdir

Solicitors for the Applicant:

Robertson Hyetts

Counsel for the Respondent:

J. Howe

Solicitors for the Respondent:

Nevett Ford

ORDERS

Pursuant to s.90SM of the Family Law Act 1975 (Cth), there be orders altering the property interests of the parties.
The respondent retain for her sole use and benefit the real property situated at and known as Property C, in the state of Victoria, more particularly described in Certificate of Title Volume (omitted) Folio (omitted) and Volume (omitted) Folio (omitted) (“the real property”).
The respondent indemnify the applicant with respect to the (omitted) Bank mortgages encumbering the real property.
The respondent refinance the (omitted) Bank Loan, formally the business loan for (omitted) Pty Ltd and indemnify the applicant with respect to the liability.
Within 7 days of the date of this order, the applicant withdraw at his expense the caveat lodged over the property, caveat number (omitted) and provide to the respondent’s solicitors a copy of the Withdrawal of Caveat.
Within 60 days of the date of the removal of the caveat referred to in order 5 herein, the respondent pay to the applicant the sum of $51,840.00 (“the payment”).
The applicant retain for his sole use and benefit any proceeds of sale from the business known as (omitted) Pty Ltd (“the business”).
The applicant forthwith do all acts and things and sign all necessary documents at his expense to procure the release of the respondent from any or all guarantees given by the respondent in relation to the business.
Both parties be equally liable for the payment of the debt owed on the (omitted) Bank visa card.
In default of the payment referred to in order 6 herein, the respondent forthwith do all acts and things and sign all such documents to place the real property on the market for sale altogether out of Court on the following terms (“the sale”):
(a)by a licensed real estate agent as agreed between the parties or failing agreement then an agent as appointed by the President of the Real Estate Institute of Victoria (“REIV”);
(b)at an agreed reserve price, or failing agreement at a…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Conway and Jordan

Details

AGLC: Conway and Jordan [2016] FCCA 1175
Case: [2016] FCCA 1175
Decision Date: 17 May 2016

CaseChat Overview and Summary

This matter concerned property adjustment orders made by Judge Wilson pursuant to section 90SM of the *Family Law Act 1975* (Cth) between the applicant, Mr Conway, and the respondent, Ms Jordan. The dispute involved the division of various assets and liabilities, including real property, a business, bank loans, and superannuation interests.

The court was required to determine how the parties' property interests should be altered to achieve a just and equitable distribution. This involved considering the allocation of specific assets, such as a property and a business, and assigning responsibility for various debts and financial obligations, including mortgages and business loans. Furthermore, the court needed to address the division of superannuation entitlements and the implications of any caveats lodged over property.

Judge Wilson's reasoning led to a comprehensive set of orders aimed at finalising the property settlement. The respondent was ordered to retain the real property, subject to her refinancing existing mortgages and indemnifying the applicant against those liabilities. The applicant was to retain the proceeds from the business and be released from any guarantees related to it. A significant portion of the settlement involved a payment from the respondent to the applicant, with provisions for the sale of the real property if this payment was not made within a specified timeframe. The court also ordered a superannuation split in favour of the applicant and severed any joint tenancies, with each party to retain other property in their possession and be solely liable for associated liabilities.

Orders

Orders of the court

Pursuant to s.90SM of the Family Law Act 1975 (Cth), there be orders altering the property interests of the parties.

The respondent retain for her sole use and benefit the real property situated at and known as Property C, in the state of Victoria, more particularly described in Certificate of Title Volume (omitted) Folio (omitted) and Volume (omitted) Folio (omitted) (“the real property”).

The respondent indemnify the applicant with respect to the (omitted) Bank mortgages encumbering the real property.

The respondent refinance the (omitted) Bank Loan, formally the business loan for (omitted) Pty Ltd and indemnify the applicant with respect to the liability.

Within 7 days of the date of this order, the applicant withdraw at his expense the caveat lodged over the property, caveat number (omitted) and provide to the respondent’s solicitors a copy of the Withdrawal of Caveat.

Within 60 days of the date of the removal of the caveat referred to in order 5 herein, the respondent pay to the applicant the sum of $51,840.00 (“the payment”).

The applicant retain for his sole use and benefit any proceeds of sale from the business known as (omitted) Pty Ltd (“the business”).

The applicant forthwith do all acts and things and sign all necessary documents at his expense to procure the release of the respondent from any or all guarantees given by the respondent in relation to the business.

Both parties be equally liable for the payment of the debt owed on the (omitted) Bank visa card.

10.

In default of the payment referred to in order 6 herein, the respondent forthwith do all acts and things and sign all such documents to place the real property on the market for sale altogether out of Court on the following terms (“the sale”):

(a) by a licensed real estate agent as agreed between the parties or failing agreement then an agent as appointed by the President of the Real Estate Institute of Victoria (“REIV”);

(b) at an agreed reserve price, or failing agreement at a price to be determined by the appointed real estate agent;

(c) on an unconditional REIV contract of sale of thirty days duration pending settlement or as determined by the appointed estate agent as agreed between the parties;

(d) the property may be sold by public auction on the recommendation of the estate agent with the agreement of the parties;

(e) the parties shall do all such acts and things and sign all documents necessary to effect the sale including co-operating with any reasonable request of the estate agent including making keys available, allowing inspection of the real property at times requested by the estate agent and ensuring that the real property dwelling and grounds are in a neat and presentable condition at the time of inspection and auction; and

(f) the conduct of the conveyance as agreed between the parties.

11.

Upon completion of the sale, the proceeds of the sale of the real property are to be applied:

(a) first, to pay costs, commissions and expenses of the sale;

(b) second, to discharge any mortgage(s), the business loan and any other encumbrance affecting the real property; and

(c) third, the balance to be equally divided between the parties with an adjustment of $30,000.00 in favour of the respondent.

12.

Pending the completion of the sale:

(a) the respondent have the sole right of occupation of the real property and during such right of occupation shall make all payments in respect of the mortgage loan, business loan, rates and like outgoings of or in respect of the real property as they fall due;

(b) the parties shall hold their respective interests in the real property on trust and shall not further encumber the real property without the express written consent of the other.

13.

Contemporaneously with the completion of the sale, the parties shall cause all caveats (if any) lodged over the real property to be withdrawn.

14.

Liberty is granted to either party to apply to the Court in respect of any terms and conditions of the sale.

15.

There be a superannuation split of the respondent’s superannuation to the applicant in the sum of $24,758.00.

16.

Paragraphs 17 - 21 (inclusive) of these Orders are binding on the Trustee of (omitted) Superannuation Fund (“the Fund”).

17.

In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth) (Act), whenever a splittable payment becomes payable in respect of the superannuation interest of the respondent MS JORDAN born (omitted) 1971, in (omitted) Super member number (omitted), the applicant MR CONWAY born (omitted) 1971, or his legal personal representative, will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 (Cth) using the base amount of $24,758.00 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

18.

Order 17 of these orders binds the Trustee of the Fund and these orders take effect from the operative time, being the fourth business day after the date of service of these orders on the Trustee.

19.

Each party and the Trustee of the Fund have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.

20.

Until such time as the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant:

(a) the respondent provide to the applicant no less than twenty-eight days’ notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the Fund;

(b) the respondent direct and authorise the Trustee of the Fund to communicate with the applicant and/or any person authorised by him in writing:

(i) to answer any reasonable inquiries as may be made by him or on his behalf from time to time in relation to her entitlement in the Fund; and

(ii) to provide to the applicant and/or his authorised representative with a copy of any notice of any application or request by the respondent which seeks release of entitlements in the Fund in so far as that release may affect the applicant’s entitlement in the Fund pursuant to these orders.

(c) the respondent by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the applicant, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.

21.

In the event that the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

22.

Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106(A) of the Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.

23.

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

(a) each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders including all motor vehicles;

(b) monies standing to the credit of the parties are to remain the property of that party;

(d) insurance policies remain the sole property of the life insured named therein;

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

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

24.

All extant applications be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.