DENTON & DENTON

Case [2010] FMCAfam 1282


FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENTON & DENTON [2010] FMCAfam 1282
FAMILY LAW – Property adjustment – asset pool – failure to disclose – contributions – costs.
Family Law Act 1975, ss.4, 75(2), 78, 79, 79(4), 117 (2)(a), (b), (c), (d), (e), (f), 106A
EvidenceAct1995 (Cth), s.131
Federal Magistrates Act1999 (Cth)
Jones & Dunkel [1959] HCA 8
Brown & Dunn (1893) 6 R 67 (HL)
Weir & Weir [1993] FLC 92-338
Black & Kellner [1992] FLC 92-287
Calderbank & Calderbank [1976] Fam 93
Kennon & Kennon [1997] FamCA 27
Boyce & Boyce [2007] FamCA 1165
Bingham & Bingham [2009] FMCAfam 99
Whelan & Whelan [2010] FamCA 530
Rosati & Rosati [1998] FamCA 38
Guinti & Guinti [1986] FLC 91-759
Brease & Brease (1998) FLC 92-793; 22 FamLR 518
Oriolo & Oriolo [1985] FLC 91-653
Livesey & Jenkins [1985] All ER 106
D & D [2003] FamCA 473
Kucera & Kucera [2009] FMCAfam 1032
M & M [2006] FMCAfam 424
Kennon & Kennon (1997) FLC 92-757
Fisher (1986) 91-767
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Applicant: MS DENTON
Respondent: MR DENTON
File Number: PAC2788 of 2009
Judgment of: Harman FM
Hearing dates: 30 September, 1 & 6 October 2010
Date of Last Submission: 6 October 2010
Delivered at: Parramatta
Delivered on: 6 October 2010

REPRESENTATION

Counsel for the Applicant: Ms Druitt
Solicitors for the Applicant: Watson Stafford Zipkis
Counsel for the Respondent: Ms Friedlander
Solicitors for the Respondent: Harb Lawyers

ORDERS

  1. That within 28 days the husband is to arrange for the removal from the premises at Property K, at his own expense, all items of plant, equipment or property upon the grounds of that home including but not limited to an above ground pool shell.  And upon such uplift and removal the husband should be declared the sole and absolute owner at law and in equity, as against the wife, of those items.

  2. In the event that the above items are not removed within 28 days of these orders, then the wife is to obtain a quote for removal of those items and is at liberty to then cause the removal and/or sale of disposal, and if sold is to account to the husband for any net balance that arises after deduction of removal costs.  And if a net loss results, such amount is to be deducted from the sum to be paid by the wife to the husband pursuant to these orders.

  3. By 21 January 2011 the wife shall:

    (a)Discharge the mortgage over the property at Property K, being all that parcel and certificate of title, folio identifier [omitted]; and

    (b)Pay to the husband, subject to order 4 hereof, the sum of $142,828 representing 20 per cent of the net equity in the home.

  4. That from the sum of $142,828 to be paid by the wife to the husband, the wife shall deduct there from and simultaneously attend to payment of:

    (a)The debt recorded by writ on title of the property, being…

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AGLC
DENTON & DENTON [2010] FMCAfam 1282
Case
[2010] FMCAfam 1282
Decision Date

CaseChat Overview and Summary

Denton & Denton concerned a property settlement dispute following the separation of the parties. The case was heard in the Family Court of Australia, where the primary judge, Judge Harper, was tasked with determining the division of the matrimonial assets. The key issues before the court were the valuation and division of the matrimonial home, Property K, and the allocation of various personal belongings and debts. The wife sought a declaration of ownership over certain items and the sale of the home, while the husband contested the valuation and sought to retain certain assets.

The court considered the contributions of each party to the acquisition and maintenance of the assets, the value of the home, and the debts associated with it. Judge Harper found that the wife was entitled to a 20% share of the net equity in the home, which amounted to $142,828, and ordered the husband to facilitate the sale of the property if the wife did not discharge certain obligations within the specified timeframe. The court also addressed the ownership of personal items, motor vehicles, and funds, declaring each party as the sole owner of items in their possession or control. Additionally, the court ordered the husband to pay the wife's legal costs from a specific date.

The outcome of the case included detailed orders for the removal and sale of the matrimonial home, the division of personal property, and the payment of costs. The court's orders were designed to ensure a fair distribution of assets while also addressing the specific circumstances of the parties. The final orders mandated the husband to remove certain items from the property, pay a specified amount to the wife, and facilitate the transfer of his interest in the property to the wife upon her compliance with certain conditions.

Orders

Orders of the court

1.

That within 28 days the husband is to arrange for the removal from the premises at Property K, at his own expense, all items of plant, equipment or property upon the grounds of that home including but not limited to an above ground pool shell. And upon such uplift and removal the husband should be declared the sole and absolute owner at law and in equity, as against the wife, of those items.

2.

In the event that the above items are not removed within 28 days of these orders, then the wife is to obtain a quote for removal of those items and is at liberty to then cause the removal and/or sale of disposal, and if sold is to account to the husband for any net balance that arises after deduction of removal costs. And if a net loss results, such amount is to be deducted from the sum to be paid by the wife to the husband pursuant to these orders.

3.

By 21 January 2011 the wife shall:

(a) Discharge the mortgage over the property at Property K, being all that parcel and certificate of title, folio identifier [omitted]; and

(b) Pay to the husband, subject to order 4 hereof, the sum of $142,828 representing 20 per cent of the net equity in the home.

4.

That from the sum of $142,828 to be paid by the wife to the husband, the wife shall deduct there from and simultaneously attend to payment of:

(a) The debt recorded by writ on title of the property, being an unquantified debt, to [Ms T] Physiotherapy and Sports Injury Centre; and

(b) Any net loss arising from the removal and disposal of items in accordance with order 2 hereof.

5.

That upon the wife’s compliance with order 4 hereof, that the husband shall forthwith and contemporaneous there with do all things, sign all documents and give all consents and authorities necessary to transfer to the wife, or as the wife may direct in writing prior to settlement, all of the husband’s right, title and interest in the Property K property.

6.

In the event that the wife should fail, neglect or refuse to comply with order 4 hereof by 21 January 2011, then the property shall be listed for sale and sold by private treaty using a real estate agent or agents and a solicitor or conveyancer agreed between the parties and at a listing and ultimate sale price agreed between the parties or otherwise as provided for by these orders.

7.

I make orders in accordance with paragraph 9 of the wife’s amended initiating application filed 21 January 2010 regarding the mechanics of the sale of the property if required.

8.

Upon completion of any sale of the matrimonial home each of the parties shall do all things, sign all documents and give all consents and authorities as may be necessary to cause the net proceeds of sale of the home to be distributed in the following manner and priority:

(a) In payment of all costs and expenses of sale including legal costs on sale and discharge of mortgage and agents commission.

(b) In discharge of the mortgage encumbering the property.

(c) In payment of all outstanding council and water rates.

(d) In payment to the wife of an amount equal to 80 per cent of the net proceeds then remaining.

(e) In payment out of the debt referred to above to Ms T.

(f) In payment or reimbursement to the wife of any net loss incurred with respect to the sale and/or removal of items in accordance with this order.

(g) As to the balance then remaining to the husband.

9.

That pursuant to section 78, that each of the husband and the wife shall, as against the other, be declared the sole owner at law and in equity of:

(a) All items of furniture, furnishings, chattels and personalty in their respective possession, custody or control. And for the purpose of this order, the contents of the Property K property shall be taken to be in the wife’s possession.

(b) Any motor vehicle or motor vehicles in their respective possession.

(c) All funds held by them, whether in cash or on deposit with any financial institution.

(d) All contributions to or benefits and entitlements arising from membership of any fund of insurance or superannuation.

10.

Make section 106A order in the usual form authorising a registrar to sign documents in the place of any party who defaults.

11.

I dismiss all outstanding applications and responses.

12.

I make an order for the return of subpoenaed material upon the expiration of the appeal period on the usual terms.

Accordingly, I make the following further orders:

13.

That the husband shall pay the wife’s costs of these proceedings from 4 September 2009 to conclusion, such costs assessed and fixed in the sum of $26,000.

14.

The sum of $26,000 to be paid by the husband shall be and is hereby a charge upon the husband’s right, entitlement, and interest pursuant to property adjustment orders made by me this day.

15.

The wife shall be and is hereby authorised to deduct from any moneys to be paid by her to the husband pursuant to the substantive property adjustment orders made today, and to retain those funds for application towards payment of her legal fees, and or in the event that the sale of the property proceeds, such funds to be deducted from the husband’s entitlement on distribution and paid instead to the wife.

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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