FEDERAL CIRCUIT COURT OF AUSTRALIA
| COWAN & COWAN | [2019] FCCA 720 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case part way through trial – disputes about non-disclosure – potential joinder of third parties – costs of proposed third party. |
| Legislation: Family Law Act1975 (Cth), ss.75(2), 75(2)(b), 75(2)(o), 78, 79, 79(2), 79(4), 90XT(1)(a), 106A |
| Cases cited: Hall & Hall [2016] HCA 23 |
| Applicant: | MR COWAN |
| Respondent: | MS COWAN |
| File Number: | MLC 5967 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1 and 2 February 2018, 23 and 27 April 2018, 12 October 2018 and 21 and 22 January 2019 |
| Date of Last Submission: | 22 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | Whyte Just & Moore |
| Counsel for the Respondent: | Mr Whitchurch |
| Solicitors for the Respondent: | Harwood Andrews Lawyers |
ORDERS
That the Husband pay the Wife the sum of $151,037 (“the payment”) within 90 days of these Orders (“the Date”).
That contemporaneously with the payment:
(a)The Husband do all acts and things and sign all documents as required to transfer to the Wife at the expense of the Wife all of his right title and interest in the real property situated at and known as Property A, Victoria (“the Property A property”).
(b)The Wife do all acts and things to refinance the mortgage registered over the Property A property to remove the Husband’s name from it, and release and forever indemnify the Husband from the said mortgage together with all apportionable rates, taxes and outgoings of or with respect to the Property A property of whatsoever nature and kind.
(c)The Wife do all acts and things and sign all documents required to transfer to the Husband at the expense of the Husband all of her right title and interest in the real property situated at and known as Property B, Victoria, (the Property B property”).
(d)The Husband do all acts and things to refinance the mortgage registered over the Property B property to remove the Wife’s name from it, and indemnify the Wife from the said mortgage and all apportionable rates, taxes and outgoings of or with respect to the Property B property of whatsoever nature and kind.
That in the event that the Wife is unable or unwilling to comply with Order 2(b) by the payment date, the Husband and Wife do all things necessary to enable the Property A property to be listed on the market for sale (“the sale”) and upon completion of the sale, the proceeds be applied:
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge…
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- Case
- [2019] FCCA 720
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate division of the parties' property, taking into account various factors including their respective contributions, the impact of post-separation conduct, and the need for adjustments under section 75(2) of the *Family Law Act 1975* (Cth). The court also had to consider the implications of any alleged non-disclosure by the parties and the potential for third parties to be joined to the proceedings, as well as the costs associated with such joinder.
The court's reasoning led to a detailed set of orders aimed at achieving a final division of the parties' assets. These orders included specific monetary payments, the transfer of interests in real property (Property A and Property B), and provisions for the sale of these properties if certain conditions were not met. The court also addressed the division of other assets, including a business (Business C Pty Ltd), motor vehicles, and interests in a family trust and superannuation funds. The orders stipulated that each party would be the sole owner of property in their possession not otherwise dealt with, and included provisions for the Registrar to execute documents if a party failed to do so.
Orders
Orders of the court
1.
That the Husband pay the Wife the sum of $151,037 (“the payment”) within 90 days of these Orders (“the Date”).
2.
That contemporaneously with the payment:
(a) The Husband do all acts and things and sign all documents as required to transfer to the Wife at the expense of the Wife all of his right title and interest in the real property situated at and known as Property A, Victoria (“the Property A property”).
(b) The Wife do all acts and things to refinance the mortgage registered over the Property A property to remove the Husband’s name from it, and release and forever indemnify the Husband from the said mortgage together with all apportionable rates, taxes and outgoings of or with respect to the Property A property of whatsoever nature and kind.
(c) The Wife do all acts and things and sign all documents required to transfer to the Husband at the expense of the Husband all of her right title and interest in the real property situated at and known as Property B, Victoria, (the Property B property”).
(d) The Husband do all acts and things to refinance the mortgage registered over the Property B property to remove the Wife’s name from it, and indemnify the Wife from the said mortgage and all apportionable rates, taxes and outgoings of or with respect to the Property B property of whatsoever nature and kind.
3.
That in the event that the Wife is unable or unwilling to comply with Order 2(b) by the payment date, the Husband and Wife do all things necessary to enable the Property A property to be listed on the market for sale (“the sale”) and upon completion of the sale, the proceeds be applied:
(a) Firstly, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage and any other encumbrance affecting the Property A property;
(c) Thirdly, an amount that enables a payment to the Wife such that she receives 60% of the total realisable assets of the parties to the wife; and
(d) Fourthly, the balance to the Husband.
4.
That in the event that the whole of the payment has not been made by the Date, the Husband and Wife do all things necessary to enable the Property B Property to be listed on the market for sale and upon completion of the sale, the proceeds be applied:
(a) Firstly, to pay all costs, commissions and expenses of the Sale;
(b) Secondly, to discharge the mortgage and any other encumbrance affecting the Property B property;
(c) Thirdly, an amount that enables a payment to the Wife such that she receives 60% of the total realisable assets of the parties; and
(d) Fourthly, the balance to the Husband.
5.
For the purpose of calculating the payments to the parties pursuant to Orders (3 and 4) herein, the total realisable assets (excluding superannuation) of the parties consists of:
(a) The business – Business C Pty Ltd with an agreed value of $100,000;
(b) If sold, the net proceeds of sale of the property at Property A and if not sold its equity valued at $210,000;
(c) If sold, the net proceeds of sale of the property at Property B and if not sold, its equity valued at $285,000;
(d) the Motor Vehicle D valued at $25,000;
(e) the proceeds of sale of the Motor Vehicle E of $15,000;
(f) the Motorcycle valued at $1,000;
(g) the proceeds of sale of the jetski pf $12,500;
(h) the Motor Vehicle F valued at $20,000;
(i) the car hoist valued at $2,000;
(j) proceeds of sale of the ride on lawn mower $2,500.
6.
That pending the payment being made or completion of the sale:
(a) The Wife have sole right to occupy the Property A property and the Husband have sole right to occupy the Property B property and during such right of occupation the Wife pay all instalments pursuant to the mortgage and all apportionable rates, taxes and outgoings of the Property A property as they fall due, and the Husband pay all instalments pursuant to the mortgage and all apportionable rates, taxes and outgoings of the Property B property as they fall due, and they shall indemnify each other with respect to these payments;
(b) The parties hold their respective interests in the Property A property and the Property B property on trust pursuant to the Orders; and
(c) Neither party further encumber the Property A property or the Property B property without the consent in writing of the other party (save in the ordinary course of the Husband’s business, and for the purpose of him complying with these Orders).
7.
That within 7 days of the date of these Orders the Husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the Wife at the expense of the Wife all of his right, title, and interest in the Motor Vehicle D motor vehicle registration number ….
8.
That the Husband retain and the Wife make no claim in respect of the Business C Pty Ltd.
9.
That the Husband indemnify the Wife in relation to any debts, mortgages, taxes or other liabilities with respect to the business Direct Business C Pty Ltd.
10.
Contemporaneously with the transfers as referred to in paragraph 8 hereof, the Wife at the parties’ joint expense transfer and assign to the Husband or his nominee, for the Husband or his nominee’s own use and benefit, all and any right title, interest or beneficial entitlement including as nominated beneficiary or appointor, she may have in the Cowan Family Trust, including any funds standing to her credit in any beneficiary or loan account/s.
11.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a) Each party shall 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.
(b) Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(c) 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.
12.
That having been accorded procedural fairness, paragraphs 11 to 14 of these Orders are binding upon the Trustee of … Investment Ltd in respect of the Husband, Mr Cowan’s (date of birth: … 1973), Super Fund G Personal Super - Account No. … (“the Fund”).
13.
That the base amount of $44,063.75 be allocated to the Wife from the Husband's interest in the Fund.
14.
Pursuant to s.90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment becomes payable in respect of the Husband's interest in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt.6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”), using the base amount, and there be a corresponding reduction in the entitlement the Husband would have had but for these Orders.
15.
That Order 13 has effect from the operative time.
16.
The operative time for the purposes of Order 15 of these Orders is four business days after the date of service of these Orders upon the Trustee of the Fund.
17.
That all previous Orders in this proceeding be discharged.
18.
That pursuant to s.78 of the Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a) all items of furniture, furnishings, personalty, chattels and jewellery;
(b) all monies (whether held in cash or in deposit with any financial institution);
(c) any motor vehicle;
(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.
19.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A of the Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
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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