Corbon and Klousner - [2015] FamCA 842

FAMILY COURT OF AUSTRALIA

CORBON & KLOUSNER

[2015] FamCA 842

FAMILY LAW – PROPERTY SETTLEMENT – valuation of husband’s interest in business partnership – capitalisation of assets valuation accepted – husband seeking sale of former matrimonial home – wife seeking to retain former matrimonial home – post-separation contributions made by the husband – husband seeking 52/48 distribution in favour of the wife – wife seeking 65/35 distribution in her favour based on capitalisation of assets valuation of the business partnership – wife’s future needs – just and equitable division of property 65/35 in favour of wife – final orders made for property settlement – wife seeking lump sum spousal maintenance of $140,400 – not satisfied wife has met the threshold test for spousal maintenance –– final orders made dismissing the wife’s application for spousal maintenance

Family Law Act 1975 (Cth) ss 72, 74(1), 75(2), 79
Evidence Act 1995 (Cth) s 140

Family Law Rules 2004 (Cth) r 15.44

Bevan & Bevan (2013) FLC 93-545
Bolger & Headon (2014) FLC 93-575
Clauson & Clauson (1995) FLC 92-595
Marsh & Marsh (2014) FLC 93-576
Norbis & Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
Scott & Scott [2006] FamCA 1379
Stanford & Stanford (2012) 247 CLR 108
Waters & Jurek (1995) FLC 92-635
Williams v Williams (1985) FLC 91-628

APPLICANT:

Mr Corbon

RESPONDENT:

Ms Klousner

FILE NUMBER:

MLC

236

2013

DATE DELIVERED:

9 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

3, 4, 5, 6 & 9 February 2015. Further written evidence submitted by agreement on 16 June 2015.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Atkinson

SOLICITOR FOR THE APPLICANT:

Susan Snyder

COUNSEL FOR THE RESPONDENT:

Mr M Wilson

SOLICITOR FOR THE RESPONDENT:

CE Family Lawyers

Orders

THE COURT ORDERS:

That the Wife is declared to be solely entitled to the real property at B Street, Suburb C (“the Suburb C property”);
That forthwith upon the making of these Orders the Wife indemnify and keep indemnified the Husband with respect to the mortgage secured over the Suburb C property and the investment loan secured over the Suburb C property;
That the Wife sign all documents and do all acts necessary to refinance the mortgage debt secured on the Suburb C property into her sole name and effect a full discharge of the Husband’s liability in relation to that mortgage and the investment loan;
That within 90 days the Wife pay to the Husband the sum of $84,880;
That if the said sum of $84,880 is not paid within the period specified :
(a)the Wife pay the Husband interest thereon at the rate prescribed by the Family Law Act1975 (Cth) and calculated on a daily basis until such payment is received by the Husband; and
(b)the Wife forthwith do all acts and things necessary to place the Suburb C property upon the market for sale upon such terms and conditions and reserve price as may be agreed by the parties and…

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 Corbon and Klousner

Details

AGLC: Corbon and Klousner [2015] FamCA 842
Case: [2015] FamCA 842
Decision Date: 9 October 2015

CaseChat Overview and Summary

In the matter of Corbon and Klousner, Thornton J of the Family Court of Australia made orders concerning the property settlement between the parties. The dispute involved the division of various assets, including real property, a family trust, company shares, and superannuation entitlements, as well as the discharge of associated liabilities.

The court was required to determine the entitlements of each party to the matrimonial assets and liabilities. This included deciding the sole ownership of the Suburb C property, the division of proceeds from the Corbon Family Trust shares, the allocation of liabilities related to the Suburb N property, and the distribution of interests in the Corbon Family Trust and D Pty Ltd. Furthermore, the court addressed the division of a specific superannuation interest held by the Husband in the E Super Account.

Thornton J's reasoning, as reflected in the orders, involved a comprehensive division of the parties' financial affairs. The Wife was declared solely entitled to the Suburb C property, with an obligation to indemnify the Husband against its associated debts and to pay him a sum of $84,880 within 90 days, failing which the property would be sold. The Husband retained liability for a portion of the mortgage on the Suburb N property, with the Wife to be indemnified. The Wife relinquished her interest in the Corbon Family Trust and D Pty Ltd in favour of the Husband, who was to indemnify her against any liabilities arising from her prior interest. The parties were to retain property in their possession, with specific orders for an equal division of the Corbon Family Trust shares and a payment split from the Husband's superannuation interest. The Wife's application for spousal maintenance was dismissed.

Orders

Orders of the court

THE COURT ORDERS:

That the Wife is declared to be solely entitled to the real property at B Street, Suburb C (“the Suburb C property”);

That forthwith upon the making of these Orders the Wife indemnify and keep indemnified the Husband with respect to the mortgage secured over the Suburb C property and the investment loan secured over the Suburb C property;

That the Wife sign all documents and do all acts necessary to refinance the mortgage debt secured on the Suburb C property into her sole name and effect a full discharge of the Husband’s liability in relation to that mortgage and the investment loan;

That within 90 days the Wife pay to the Husband the sum of $84,880;

That if the said sum of $84,880 is not paid within the period specified :

(a) the Wife pay the Husband interest thereon at the rate prescribed by the Family Law Act 1975 (Cth) and calculated on a daily basis until such payment is received by the Husband; and

(b) the Wife forthwith do all acts and things necessary to place the Suburb C property upon the market for sale upon such terms and conditions and reserve price as may be agreed by the parties and in default of agreement as determined by the President of the Real Estate Institute of Victoria or his/her nominee, and the proceeds of sale be applied as follows:

(i) in payment of all costs and expenses of sale, including all rate and tax adjustments and land tax;

(ii) in discharge of the mortgage registered over the Suburb C property and the investment loan;

(iii) in payment of the said sum of $84,880 outstanding or the balance thereof owing to the Husband together with interest thereon calculated pursuant to Order (5)(a) herein; and

(iv) the balance, if any, to be retained by the Wife.

That the Husband retain his liability for 87 per cent of the mortgage on the Suburb N property and that the Wife be indemnified in respect of this liability;

Subject to Order (8) herein the Wife relinquish any interest she has in the Corbon Family Trust and D Pty Ltd (“the entities”) (including the offset account held by D Pty Ltd) and the ANZ offset account containing $353,309 in favour of the Husband and within 30 days both parties do all such acts and things, at the expense of the Husband, to remove the Wife from the Corbon Family Trust;

That the Husband be solely responsible for and indemnify the Wife in respect of any liability whatsoever that may arise from the Wife having had an interest in and /or having received any income, asset, benefit, payment, loan or otherwise from the entities;

That each party indemnify the other with respect to any expenses, outgoings and liabilities related to those items of property which they are to retain or receive pursuant to these Orders;

10.

That subject to these orders and declarations each of the Husband and the Wife is declared to be solely entitled to all items of property whether real or personal and superannuation entitlements which are presently in their respective possession or control; and

11.

That the Wife’s application for spousal maintenance is dismissed.

IT IS FURTHER ORDERED BY CONSENT:

12.

That the parties do all things to effect an equal division of the proceeds of sale of the Corbon Family Trust shares valued at $139,236.

13.

That these Orders bind the trustees of the E Super Account (“the Fund”) and these Orders take effect from the operative time being the fourth business day after service of these Orders on the trustee of the Fund.

14.

That the base amount allocated to the Wife out of the superannuation interest of the Husband in the Fund is $33,670.

15.

That in accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the superannuation of the Husband in the Fund, the Wife be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth), using the base amount of $33,670 and there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have been made but for these Orders.

16.

That until the happening of any of:

(a) the establishment of a separate account in the name of the Wife in the Fund;

(b) the transfer or “rolling over” into another superannuation fund of the payment split created by Order (14) of these Orders;

(c) the Wife satisfying a condition of release and being paid the payment split which was created by Order (14) of these Orders; or

(d) the Wife executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 (Cth) in relation to the payment split created by Order (14) of these Orders;

the Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Fund a “not splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) and the trustees of the Fund give effect to this Order.

17.

That the solicitors for the Wife serve a sealed copy of these Orders on the trustees of the Fund.

IT IS FURTHER ORDERED BY THE COURT:

18.

That all extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED:

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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