Devlin and Mistry and Anor

This matter came before Judge McNab concerning a dispute between the applicant (husband), the first respondent (wife), and the second respondent. The core of the dispute involved the division of property, specifically a real property identified as Property H in Victoria, and the allocation of various assets and liabilities, including superannuation interests.

The court was required to determine the ownership interests of the parties in Property H and to make orders for its sale and the distribution of the proceeds. Further issues included the division of other assets and liabilities, such as funds from the sale of a former matrimonial home, motor vehicles, shares, a student loan, and personal debts. A significant aspect of the determination involved the division of superannuation interests held by the husband, requiring specific orders to be binding on the trustee of the superannuation fund.

Judge McNab declared that Property H was owned equally by the husband, the wife, and the second respondent, each holding a one-third interest. The court ordered the sale of Property H within 60 days, specifying terms for the appointment of a real estate agent and solicitor, a reserve price, and a timeline for sale by public auction or private treaty, with provisions for dispute resolution by the President of the Victorian Division of the Australian Property Institute or the President of the Law Society of Victoria. The proceeds of sale were to be applied first to sale costs, then to discharge encumbrances, followed by a provision for capital gains tax liability, reimbursement for sale preparation costs, a specific payment to the second respondent, and finally, the balance to be divided to achieve a 70%/30% split of net non-superannuation assets between the wife and husband respectively. The orders also detailed the retention of specific assets by each party, the husband's sole liability for a student loan, and a directive for the husband to transfer a motor vehicle to the wife. Crucially, the court made detailed orders regarding the division of the husband's superannuation, including a base amount to be allocated to the wife and provisions for notice and protection of her entitlement during the process. The court also ordered the first respondent to pay the second respondent's costs fixed at $2,048, with liberty to apply regarding further costs.