CORLETT & CORLETT - [2019] FCCA 2129

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORLETT & CORLETT

[2019] FCCA 2129

Catchwords:
FAMILY LAW – Valuation of business assets – whether assets should be sold – whether valuation should be determined by sale or by a valuer – not readily realisable assets – whether the proposed orders are just and equitable – allegations of non-disclosure.

Legislation:

Family Law Act 1975 (Cth), ss.74, 75

Child Support Assessment Act 1989 (Cth) ss.116 and 117

Cases cited:

Chang v Su [2002] FamCA 156
Spencer v Spencer (2012) FamCA 138

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-1436
Bevan & Bevan [2013] FamCAFC 116
Stanford & Stanford [2012] HCA 52
Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203

Applicant:

MS CORLETT

Respondent:

MR CORLETT

File Number:

MLC 12170 of 2017

Judgment of:

Judge McNab

Hearing dates:

6 and 7 December 2018 and 14 February 2019

Date of Last Submission:

6 March 2019

Delivered at:

Melbourne

Delivered on:

6 August 2019

REPRESENTATION

Counsel for the Applicant:

Dr Ingleby

Solicitors for the Applicant:

Marshalls+dent+wilmoth lawyers

Counsel for the Respondent:

Mr Wilson

Solicitors for the Respondent:

Warren, Graham & Murphy Pty Ltd

ORDERS

The Applicant wife (‘wife’) arrange for the money remaining in the parties’ ANZ Bank (no. …) containing the sum of approximately $276,000 to be paid to her as a part property settlement.
Upon request from the wife, the Respondent Husband (‘husband’) sign all documents provided to him by the wife to give effect to order 1 of these orders.
The husband pay to the wife, by way of part property settlement, the sum of $500 per week commencing 13 August 2019 and weekly thereafter until further order.
The husband, his servants and/or agents be prohibited from diminishing the value of any interest he has in the Business G in Town J, the Business J in Town J and the Business J in Town H (collectively, ‘the businesses) or otherwise disposing of or further encumbering the businesses without 14 days prior written notice to the mother and her solicitors, save that it is acknowledged that the Business J in Town H has been sold and the settlement of that sale is pending and that steps taken by the father to effect settlement of that sale will not constitute a breach of these orders.
The husband or his solicitors must notify the wife upon settlement of the Business J in Town H as soon as practicable.
The parties have liberty to apply:
(a)generally;
(b)to have orders made in chambers including a superannuation splitting order if procedural fairness has been afforded to the trustee; and
(c)for any order for costs upon written submissions.
The matter be adjourned to the Federal Circuit Court of Australia in Melbourne on 18 August 2020 at 9:30am for Mention.
Prior to the parties returning to Court to seek final orders (other than by consent), they must engage in mediation with a suitably qualified legal or accounting professional.
The parties’ costs be reserved.

IT…

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 CORLETT & CORLETT

Details

AGLC: CORLETT & CORLETT [2019] FCCA 2129
Case: [2019] FCCA 2129
Decision Date: 6 August 2019

CaseChat Overview and Summary

In the matter of *Corlett & Corlett*, heard by Judge McNab, the dispute concerned the valuation and division of business assets as part of a property settlement between the applicant wife and the respondent husband. The wife sought orders for the division of assets, including the valuation of certain businesses, while the husband's conduct in relation to these businesses was also a point of contention.

The court was required to determine whether the business assets should be sold to ascertain their value or if a valuation should be obtained through other means, particularly given that they were not readily realisable assets. Furthermore, the court had to consider whether the proposed property settlement orders were just and equitable, in light of allegations of non-disclosure by the husband.

Judge McNab reasoned that the proposed orders were just and equitable, and addressed the valuation and division of assets. The court ordered that the wife receive the remaining funds in a specified ANZ Bank account as a part property settlement. The husband was also ordered to pay a weekly sum to the wife by way of part property settlement. Crucially, the husband was prohibited from diminishing the value of, or disposing of, his interests in certain businesses without providing prior written notice to the wife, with an acknowledgment that steps taken to settle the sale of one business would not constitute a breach of this order. The parties were granted liberty to apply for further orders, including superannuation splitting, and were required to engage in mediation before seeking final orders. The matter was adjourned for mention, with costs reserved.

Orders

Orders of the court

The Applicant wife (‘wife’) arrange for the money remaining in the parties’ ANZ Bank (no. …) containing the sum of approximately $276,000 to be paid to her as a part property settlement.

Upon request from the wife, the Respondent Husband (‘husband’) sign all documents provided to him by the wife to give effect to order 1 of these orders.

The husband pay to the wife, by way of part property settlement, the sum of $500 per week commencing 13 August 2019 and weekly thereafter until further order.

The husband, his servants and/or agents be prohibited from diminishing the value of any interest he has in the Business G in Town J, the Business J in Town J and the Business J in Town H (collectively, ‘the businesses) or otherwise disposing of or further encumbering the businesses without 14 days prior written notice to the mother and her solicitors, save that it is acknowledged that the Business J in Town H has been sold and the settlement of that sale is pending and that steps taken by the father to effect settlement of that sale will not constitute a breach of these orders.

The husband or his solicitors must notify the wife upon settlement of the Business J in Town H as soon as practicable.

The parties have liberty to apply:

(a) generally;

(b) to have orders made in chambers including a superannuation splitting order if procedural fairness has been afforded to the trustee; and

The matter be adjourned to the Federal Circuit Court of Australia in Melbourne on 18 August 2020 at 9:30am for Mention.

Prior to the parties returning to Court to seek final orders (other than by consent), they must engage in mediation with a suitably qualified legal or accounting professional.

The parties’ costs be reserved.

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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