Dabney and Laird

Case [2013] FCCA 214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DABNEY & LAIRD [2013] FCCA 214
Catchwords:
FAMILY LAW – Property – de facto – when cohabitation commenced and ended – whether there was an intention to separate – assessment of contribution and future needs.

Legislation:
Family Law Act 1975 (Cth) ss.4AA, 75(2), 79 - 79(4)(d)-(g), 90SF(3),90SM(1)-(4)

Evidence Act 1995 (Cth) s.140

Cases cited:
Aitken & Deakin [2010] FMCAfam 35
Barry and Dalrymple [2010] FamCA 1271
Browne and Green (1999) FLC 92-873 at 86,360:
DJM and JLM (1998) FLC 92-816
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169
Jonah and White [2011] FamCA 221
Kowaliw and Kowaliw (1981) FLC 91-092
Light v Anderson (1992) DFC 95-120.
Lynam v Director-General of Social Security (1983) 52 ALR 128
Moby and Shulter [2010] FamCA 748
Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814
AJO v GRO (2005) FLC 93-218
Pierce v Pierce (1998) FLC 92-844

Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052

Stanford & Stanford (2012) FLC 93-518
Taisha & Peng [2012] FamCA 385
Townsend and Townsend (1995) FLC 92-569
Watson & Ling (2013) FLC 93/527

Williams & Williams  [2007] FamCA 313
Applicant: MR DABNEY
Respondent: MS LAIRD
File Number: SYC 984 of 2011
Judgment of: Judge Altobelli
Hearing dates: 12 & 13 March 2013
Date of Last Submission: 13 March 2013
Delivered at: Sydney
Delivered on: 4 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Givney
Solicitors for the Applicant: Adrian Twigg & Co Solicitors And Conveyancers
Counsel for the Respondent: Ms Christie
Solicitors for the Respondent: Armstrong Legal

ORDERS

  1. The Respondent shall pay to the Applicant the sum of $150,740.00 within 90 days of the date of these Orders.

  2. The Applicant be declared sole and beneficial owner of:-

    (a)Property at P.

    (b)Bank accounts in his name.

    (c)2001 Hyundai motor vehicle.

    (d)Household contents.

    (e)Superannuation entitlements in his name.

  3. The Respondent be declared sole and beneficial owner of:-

    (a)Property at Property K.

    (b)Bank accounts in her name.

    (c)Artworks in her possession and control.

    (d)Household contents in her possession.

    (e)Superannuation entitlements in her name.

  4. In the event the Respondent fails or neglects to pay the sum of $150,740.00 [the principal sum] in accordance with Order 1 then the Respondent shall do all acts and things necessary to sell the property at Property K and in respect of such sum the following shall apply:-

  5. The Respondent shall place the property in the hands of a licensed auctioneer to sell the property by way of public auction within sixty days of the expiration of the 90 days referred to in Order 1.

  6. Both parties shall do all things to facilitate the sale.

  7. In the event the parties cannot agree as to the reserve price at auction or either fail to accept any offer to purchase the property prior to or subsequent to auction then the parties or either of them shall appoint the President for the time…

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Details
AGLC
DABNEY & LAIRD [2013] FCCA 214
Case
[2013] FCCA 214
Decision Date

CaseChat Overview and Summary

In the matter of Dabney and Laird, heard before Judge Altobelli, the dispute concerned the division of property and financial entitlements between the parties. The court was required to determine how various assets, including real estate, bank accounts, vehicles, household contents, and superannuation, should be allocated and to make orders regarding a monetary sum to be paid by one party to the other.

The court's reasoning led to a detailed division of the parties' assets. The Applicant was declared the sole and beneficial owner of specific property, bank accounts, a motor vehicle, household contents, and superannuation entitlements. Conversely, the Respondent was declared the sole and beneficial owner of different property, bank accounts, artworks, household contents, and superannuation entitlements.

Furthermore, the court ordered the Respondent to pay a sum of $150,740.00 to the Applicant within 90 days. In the event of non-payment, the Respondent was directed to sell Property K by public auction. The proceeds of this sale were to be applied first to sale costs, then to the payment of the principal sum plus interest to the Applicant, with any remaining balance to be paid to the Respondent. The court also provided a mechanism for resolving disputes regarding the reserve price or offers for Property K, involving the President of the New South Wales Real Estate Institute or a nominee. Finally, the court directed that any applications for costs should be made by way of written submissions.

Orders

Orders of the court

1.

The Respondent shall pay to the Applicant the sum of $150,740.00 within 90 days of the date of these Orders.

2.

The Applicant be declared sole and beneficial owner of:-

(a) Property at P.

(b) Bank accounts in his name.

(c) 2001 Hyundai motor vehicle.

(d) Household contents.

(e) Superannuation entitlements in his name.

3.

The Respondent be declared sole and beneficial owner of:-

(a) Property at Property K.

(b) Bank accounts in her name.

(c) Artworks in her possession and control.

(d) Household contents in her possession.

(e) Superannuation entitlements in her name.

4.

In the event the Respondent fails or neglects to pay the sum of $150,740.00 [the principal sum] in accordance with Order 1 then the Respondent shall do all acts and things necessary to sell the property at Property K and in respect of such sum the following shall apply:-

5.

The Respondent shall place the property in the hands of a licensed auctioneer to sell the property by way of public auction within sixty days of the expiration of the 90 days referred to in Order 1.

6.

Both parties shall do all things to facilitate the sale.

7.

In the event the parties cannot agree as to the reserve price at auction or either fail to accept any offer to purchase the property prior to or subsequent to auction then the parties or either of them shall appoint the President for the time being of the New South Wales Real Estate Institute or his or her nominee to assess the reserve price at auction and/or whether any offer made is the best price reasonably obtainable and the parties shall be bound by such assessment and shall equally bear the cost.

8.

In the event that the offer so made is assessed to be the best price reasonably obtainable then the Respondent shall sell the property to the person or persons making that offer or any person offering a sum equal to or above the best price reasonably obtainable as assessed.

9.

Upon sale the proceeds of sale shall be paid as follows:-

(a) In payment of agent’s commission and legal fees occasioned by the sale.

(b) In payment to the Applicant of the sum of $150,740.00 together with interest from the expiration of the 90 day period referred to in Order 1.

(c) In payment of the balance to the Respondent.

10.

Any application for costs to proceed by way of written submissions. The applicant for costs to file and serve within 21 days, the respondent within a further 21 days. Submissions not to exceed 500 words.

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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