Douglas and Douglas - [2009] FamCA 1303

FAMILY COURT OF AUSTRALIA

DOUGLAS & DOUGLAS

[2009] FamCA 1303

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable

Family Law Act 1975 (Cth) Sections 75 & 79

In the Marriage of Hickey (2003) 30 Fam LR 355
Wilde v Wilde [2007] FamCA 1044
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT:

Mr Douglas

RESPONDENT:

Ms Douglas

FILE NUMBER:

SYC

6556

2007

DATE DELIVERED:

17 December 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Newcastle

HEARING DATE:

19 & 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT

HUSBAND:

Mr M. Graham

SOLICITOR FOR THE APPLICANT:

Peter Hudson Lawyers

COUNSEL FOR THE RESPONDENT

WIFE:

Mr J. Hamilton

SOLICITOR FOR THE RESPONDENT

Tonkin Drysdale Partners

Orders

Within two (2) calendar months (“the due date”) the husband shall pay $248,983 (“the sum”) to the Solicitors for the wife on the wife’s behalf.
Upon the payment of the sum the wife do all acts and things and execute all documents submitted to her by the husband to transfer to the husband all her right, title and interest in property and premises situated and known as N property, being the whole of the land in Folio Identifier … (“the home”).
The husband indemnify the wife and keep her indemnified in respect of all encumbrances, charges, rates and other statutory liabilities arising in respect of the home.
Should the husband fail to pay the sum by the due date the following provisions apply:
(a)the husband and wife shall do all acts and things and execute all documents to sell the home by private treaty at a price agreed by the parties but in default of agreement at a price nominated by a Real Estate Agent appointed by the wife to sell the home;
(b)should the home not be sold within 5 months by private treaty the husband and wife shall do all acts and things and execute all documents to sell the home by public auction at a reserve price agreed by the parties but in default of agreement at a reserve price nominated by an auctioneer appointed by the wife;
(c)that pending completion of the sale of the home the husband have the right to sole occupancy thereof subject to:
(i)keeping the home fully insured and making insurance payments as such payments fall due;
(ii)keeping the home in good repair and in a tidy condition having regard to its present condition;
(iii)the husband paying the outgoings as such payments fall due;
(iv)the husband making the home available for inspection by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Douglas and Douglas

Details

AGLC: Douglas and Douglas [2009] FamCA 1303
Case: [2009] FamCA 1303
Decision Date: 17 December 2009

CaseChat Overview and Summary

Judicial Registrar Loughnan considered orders concerning the division of property between the husband and wife. The dispute involved the transfer of interests in real property, a company, superannuation, and personalty, with specific provisions for payment and indemnification.

The court was required to determine the terms of the property settlement, including the payment of a sum by the husband to the wife, the transfer of the wife's interest in the matrimonial home to the husband, and the transfer of the wife's shareholding in S Pty Limited to the husband. Further issues included the husband's indemnification of the wife regarding liabilities associated with the company and the home, the transfer of the wife's superannuation interest, and the division of personalty and financial resources. The court also needed to establish a mechanism for the sale of the home should the husband fail to make the required payment by the due date, including provisions for occupancy, sale by private treaty or auction, and the distribution of sale proceeds.

The Registrar made orders that, within two months, the husband was to pay $248,983 to the wife's solicitors. Upon this payment, the wife was to transfer her interest in the matrimonial home to the husband, who would indemnify her against all liabilities relating to the property. If the husband failed to pay, the home was to be sold, with specific procedures for private treaty or auction sale, and the net proceeds to be divided with 51% to the wife and the balance to the husband. The wife was also to transfer her shareholding in S Pty Limited to the husband, who would indemnify her against any liabilities arising from her former directorship, shareholding, or loans to the company. The husband was ordered to facilitate the transfer of the wife's superannuation interest to a fund nominated by her, and both parties were to transfer personalty and financial resources to each other as specified. A provision was included appointing the Registrar to sign documents on behalf of a defaulting party if they refused to comply with the orders.

Orders

Orders of the court

Within two (2) calendar months (“the due date”) the husband shall pay $248,983 (“the sum”) to the Solicitors for the wife on the wife’s behalf.

Upon the payment of the sum the wife do all acts and things and execute all documents submitted to her by the husband to transfer to the husband all her right, title and interest in property and premises situated and known as N property, being the whole of the land in Folio Identifier … (“the home”).

The husband indemnify the wife and keep her indemnified in respect of all encumbrances, charges, rates and other statutory liabilities arising in respect of the home.

Should the husband fail to pay the sum by the due date the following provisions apply:

(a) the husband and wife shall do all acts and things and execute all documents to sell the home by private treaty at a price agreed by the parties but in default of agreement at a price nominated by a Real Estate Agent appointed by the wife to sell the home;

(b) should the home not be sold within 5 months by private treaty the husband and wife shall do all acts and things and execute all documents to sell the home by public auction at a reserve price agreed by the parties but in default of agreement at a reserve price nominated by an auctioneer appointed by the wife;

(i) keeping the home fully insured and making insurance payments as such payments fall due;

(ii) keeping the home in good repair and in a tidy condition having regard to its present condition;

(iii) the husband paying the outgoings as such payments fall due;

(iv) the husband making the home available for inspection by prospective purchasers at all reasonable times;

(v) the husband obeying all reasonable directions from the selling agent and/or selling auctioneer.

(d) that the husband and wife do all acts and things and execute all documents to cause upon completion of the sale the proceeds of sale to be paid as follows:

(i) agent’s fees and auction fees (if any);

(ii) rate adjustments;

(iii) legal costs of sale;

(iv) 51% of the net proceeds of sale to the wife;

(v) the balance to the Husband.

The wife shall forthwith do all acts and things and execute all documents submitted to her by the husband to transfer to the husband all her right title and interest in and shareholding of S Pty Limited (“the company”).

The husband shall indemnify the wife and keep her indemnified in respect of any liability arising from:

(a) the former directorship of the wife in the company;

(b) the wife’s shareholding ownership in the company;

Forthwith upon the making of these orders the husband shall do all acts and things and execute all documents and cause the S Superannuation Fund to do all acts and things and execute all documents to cause the wife’s interest in the fund to be paid to a superannuation fund nominated by the wife.

The husband shall do all acts and things and execute all documents to transfer otherwise to the wife all his right title and interest in any personalty and financial resources in the possession or control of the wife.

The wife shall do all acts and things and execute all documents to transfer otherwise to the husband all her right title and interest in any personalty and financial resources in the possession or control of the husband.

10.

Should a party refuse or neglect to sign any document or implement the above Orders within seven (7) days of a written request to do so the Registrar of the Newcastle Registry of this Court be appointed pursuant to Section 106A to sign such document on behalf of the defaulting party and to do all acts and things to give validity thereto.

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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