FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEALBA & DEALBA | [2020] FCCA 2311 |
| Catchwords: FAMILY LAW – Final hearing – property – where husband made significant financial contribution – where wife was primary homemaker – where husband’s contributions outweighed wife’s – whether expenditure post-separation to be added back – whether legal fees to be added back – where no source of funds clear for legal fees – where no add-backs permitted – where it is just and equitable to make orders adjusting parties’ interest in property. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 90XE, 117 Family Law (Superannuation) Regulations 2001 (Cth) reg.11 |
| Cases cited: Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 Stanford & Stanford (2012) 247 CLR 108 Trevi & Trevi [2018] FamCAFC 173 |
| Applicant: | MR DEALBA |
| Respondent: | MS DEALBA |
| File Number: | SYC 6305 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 3 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Bediaga Xavier and Ramon |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Maria Mico Solicitor |
ORDERS
That pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)The parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the B Street, Suburb C property at B Street, Suburb C in the State of New South Wales being the whole of the land in Certificate of Title folio identifier ... (‘the B Street, Suburb C property’) at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the B Street, Suburb C property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:
(i)In adjustment of rates on settlement;
(ii)In payment of agent’s commission on sale;
(iii)In payment of legal and all other proper costs of sale;
(iv)In payment to the Westpac Banking Corporation Limited of a sum sufficient to discharge the first registered mortgage over the B Street, Suburb C property;
(v)In division of the then remaining balance of the proceeds of between the parties so that overall the parties have each received an equal division of the net matrimonial assets, including superannuation entitlements, where prior to the said division of the then remaining net proceeds of sale of the B Street, Suburb C property the husband has received $1,705,480 and the wife has received $2,388,033.
(b)That in the event that the B Street, Suburb C property does not sell by private sale within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the…
Continue reading DEALBA & DEALBA
Sign in free to access the full text
- AGLC
- Dealba and Dealba [2020] FCCA 2311
- Case
- [2020] FCCA 2311
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the appropriate division of the parties' net matrimonial assets, including superannuation entitlements, and whether any add-backs should be permitted. The court was required to consider the respective financial and non-financial contributions of each party and to make orders that were just and equitable.
Judge Morley reasoned that while the husband's financial contributions were significant, they did not necessarily outweigh the wife's contributions as the primary homemaker to such an extent that an unequal division was warranted. Crucially, the court found that there was no clear source of funds for the legal fees incurred by the parties, and therefore, no add-backs were permitted. The court determined that an equal division of the net matrimonial assets, after accounting for specific property and superannuation entitlements, would be just and equitable.
The court ordered the sale of the parties' jointly owned property, with the proceeds to be applied towards sale costs and mortgage discharge, followed by an equal division of the remaining net proceeds. The orders also detailed the division of various other assets, including superannuation, shares, trust interests, and personal property, and provided for the wife's exclusive occupation of the family home pending its sale. The court also made provisions for the appointment of a nominee to resolve any disputes regarding the sale of the property and for the Registrars of the Federal Circuit Court to execute documents if a party failed to comply with the orders.
Orders
Orders of the court
1.
That pursuant to section 79 of the Family Law Act 1975 (Cth):
(a) The parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the B Street, Suburb C property at B Street, Suburb C in the State of New South Wales being the whole of the land in Certificate of Title folio identifier ... (‘the B Street, Suburb C property’) at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the B Street, Suburb C property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:
(i) In adjustment of rates on settlement;
(ii) In payment of agent’s commission on sale;
(iii) In payment of legal and all other proper costs of sale;
(iv) In payment to the Westpac Banking Corporation Limited of a sum sufficient to discharge the first registered mortgage over the B Street, Suburb C property;
(v) In division of the then remaining balance of the proceeds of between the parties so that overall the parties have each received an equal division of the net matrimonial assets, including superannuation entitlements, where prior to the said division of the then remaining net proceeds of sale of the B Street, Suburb C property the husband has received $1,705,480 and the wife has received $2,388,033.
(b) That in the event that the B Street, Suburb C property does not sell by private sale within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the B Street, Suburb C property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in order 1(a) hereof.
(c) That in the event that order 1(b) operates and the B Street, Suburb C property does not sell by public auction in accordance with order 1(b) hereof then the B Street, Suburb C property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(a) hereof and the B Street, Suburb C property shall be resubmitted for sale by public auction at four (4) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the B Street, Suburb C property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(a) hereof.
(d) That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.
(e) That pending the settlement of the sale of the B Street, Suburb C property:
(i) the wife shall have exclusive occupation of the B Street, Suburb C property as between the wife and the husband;
(ii) the husband shall pay all payments due and payable, as and when due, on each of the four loan accounts in the husband’s name with the Westpac Banking Corporation Limited in his name secured by way of mortgage on the B Street, Suburb C property;
(iii) the husband and wife shall pay equally all council and water rates relating to the B Street, Suburb C property except any water rates calculated on the basis of volume of usage, which shall be paid by the wife solely.
(f) That within two months the husband and the wife as directors of Super Fund D shall roll out the whole of the value of the wife’s member account, if any, in the Dealba Superannuation Fund to another complying superannuation fund in the wife’s name and within seven days of that rollout being effected the wife shall pay to the husband a sum equal to the amount so rolled out and the wife shall do all things necessary, at the husband’s expense, to resign all offices held by her in Super Fund D and to transfer any shareholding held by the wife in that Corporation to the husband or his nominee.
(g) That within seven days of receipt by the husband from the wife of the necessary documentation, the husband shall complete and return to the wife such documentation as is necessary to transfer to the wife the whole of his interest in the parties’ jointly held shares in E Shares.
(h) That within seven days of receipt by the wife from the husband of the necessary documentation, the wife shall complete and return to the husband such documentation as is required for the wife to:
(i) Relinquish all entitlement to benefit from and powers in the Dealba Family Trust including assigning the benefit of any credit loan accounts in the wife’s name in that trust to the husband and being removed as appointor of that trust;
(ii) Resign all offices held by her in any of F Pty Ltd, G Pty Ltd, H Pty Ltd and J Pty Ltd; and
(iii) Transfer to the husband or his nominee the whole of her shareholding if any in any of F Pty Ltd, G Pty Ltd, H Pty Ltd and J Pty Ltd.
(i) That within 21 days the wife shall do all such acts and things and sign all such documents as may be required to transfer and assign to the husband at the expense of the husband all of the wife’s right title and interest in the estate of the late Mr K.
(j) That the husband is the sole owner in law and in equity as between himself and the wife of the following items of furniture contained in the B Street, Suburb C property:
(i) Wooden dining table and accompanying chairs;
(ii) Wooden bedside tables and dressing table in the master bedroom; and
(iii) The two large and small wooden crystal glass sideboards in the dining room/lounge
and the wife shall make those items available for collection by the husband or his agent by arrangement between them no later than 14 days prior to the settlement of the sale of the B Street, Suburb C property.
(k) That the wife is the sole owner in law and in equity as between herself and the husband of all real property, personal property, financial assets and financial resources currently in her power possession or control other than as dealt with specifically elsewhere in this order, and including, but not limited to, the real property at L Street, Suburb M in the State of Victoria, the real property at N Street, Town O in the State of New South Wales, her Motor Vehicle 1, the contents of the B Street, Suburb C property as at the date of the final hearing, her shareholding in Westpac Banking Corporation Limited and in E Shares and in P Shares, her jewellery, bank accounts in her name and her Super Fund Q entitlements.
(l) That the husband is the sole owner in law and inequity as between himself and the wife of all real property, personal property, financial assets and financial resources in his power possession or control other than as dealt with specifically elsewhere in this order, and including, but not limited to, his Motor Vehicle 2, his shareholding in R Ltd, his bank accounts, his interest in the estate of the late Mr K, and his Super Fund R entitlements and Super Fund S entitlements.
2.
That in the event that either party refuses, fails or neglects to comply with any part of order 1 in relation to the execution of any deed, instrument or document to give effect to order 1 the Court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument or document in the name of the party who so refuses, fails or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
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.