Downer and Downer - [2013] FamCA 303

FAMILY COURT OF AUSTRALIA

DOWNER & DOWNER

[2013] FamCA 303

FAMILY LAW – PROPERTY – Part VIII Family Law Act 1975 (Cth) – Where 25 year marriage – Where a property pool of some seven million dollars was accumulated during the relationship – Where parties accept equal contributions during the marriage – Where Husband and Wife continue to receive income from jointly owned company – Where large disparity between post-separation income of the Husband and Wife – Add backs – Kouper v Kouper (No.3) [2009] FamCA 1080 – Where Mother has primary care of the only dependent child of the relationship – Order made for property entitlements of 55/45 in the Wife’s favour.

Family Law Act 1975 (Cth)

Hickey & Hickey (2003) FLC 93-143
Kouper v Kouper (No.3) [2009] FamCA 1080

APPLICANT:

Ms Downer

RESPONDENT:

Mr Downer

FILE NUMBER:

BRC

7003

2011

DATE DELIVERED:

17 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

15 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC appearing for the Applicant Wife

SOLICITOR FOR THE APPLICANT:

Barry Nilsson

COUNSEL FOR THE RESPONDENT:

Mr Hackett of Counsel appearing for the Respondent Husband

SOLICITOR FOR THE RESPONDENT:

Evans & Company Family Lawyers

Orders

IT IS ORDERED THAT:

Percentage Division

That as and by way of final orders for property settlement made pursuant to s 79 of the Family Law Act 1975 (“FLA”) the assets, liabilities and superannuation interests of the Wife and Husband be divided in the following proportions:

a. 55 per cent (hereinafter referred to as “theWife’s percentage”); and

b. 45 per cent (hereinafter referred to as “the Husband’s percentage”).

G Street Sale Proceeds

That the Wife and Husband retain their partial property settlements of $200,000 received by each of them on 15 December 2011, being part of the proceeds of settlement from the sale of G Street, D Town.

That the Wife and Husband retain their partial property settlements of $100,000 received by each of them on 18 October 2012, being part of the proceeds of settlement from the sale of G Street, D Town.

That within seven (7) days of the date of these Orders, the parties do all acts and things as are necessary to pay out from the St George Maxi Saver account number … containing the remaining sale proceeds from the real property situated at G Street, D Town as follows with the parties to be responsible for the tax which may be assessed against them as a result of the receipt of such amounts:

a. pay to the Husband the sum of $508,905;

b. pay to the Wife the sum of $1,041,070; and

c. any interest and accretion as follows:

i. the Husband’s percentage to the Husband; and
ii. the Wife’s percentage to the Wife.

That forthwith upon the parties’ compliance with the immediately preceding Order they will do all things and sign all documents necessary to close the St George Maxi Saver account number 420819670.

H Street

That…

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 Downer and Downer

Details

AGLC: Downer and Downer [2013] FamCA 303
Case: [2013] FamCA 303
Decision Date: 17 April 2013

CaseChat Overview and Summary

This matter concerned property settlement orders made pursuant to s 79 of the Family Law Act 1975 between the Wife and Husband. The court was required to determine the division of various assets, liabilities, and superannuation interests held by the parties, including real estate, bank accounts, trusts, and a company.

The court was required to determine the specific proportions in which the parties' assets, liabilities, and superannuation interests should be divided. This involved detailed orders regarding the sale and distribution of proceeds from properties located at G Street, H Street, K Street, C Street, N Street, and R Street. The court also had to address the division of funds held in various bank accounts and trusts, including the Downer Property Trust, Downer Family Trust, and U Pty Ltd. Furthermore, the court was tasked with determining the distribution of interests in the Downer Superannuation Fund and the winding up of companies M Pty Ltd and U Pty Ltd.

The court ordered a final property settlement with the Wife receiving 55 per cent and the Husband receiving 45 per cent of the divisible assets. Specific orders were made for the sale and distribution of proceeds from various properties, including G Street, N Street, and R Street, with detailed provisions for marketing, sale, and application of proceeds. The court also ordered the division of funds in various bank accounts and trusts according to the parties' respective percentages. The Downer Superannuation Fund was to be split, with the Husband receiving 100 per cent of the Wife's interest and the Wife receiving her percentage of the Husband's interest. The companies U Pty Ltd and M Pty Ltd were to be wound up and their assets distributed according to specific terms. The court also made orders regarding the retention of certain residual properties and general provisions for the finalisation of the financial relationship between the parties, including indemnities for tax liabilities and the execution of necessary documents.

Orders

Orders of the court

IT IS ORDERED THAT:

Percentage Division

That as and by way of final orders for property settlement made pursuant to s 79 of the Family Law Act 1975 (“FLA”) the assets, liabilities and superannuation interests of the Wife and Husband be divided in the following proportions:

a. 55 per cent (hereinafter referred to as “theWife’s percentage”); and

b. 45 per cent (hereinafter referred to as “the Husband’s percentage”).

G Street Sale Proceeds

That the Wife and Husband retain their partial property settlements of $200,000 received by each of them on 15 December 2011, being part of the proceeds of settlement from the sale of G Street, D Town.

That the Wife and Husband retain their partial property settlements of $100,000 received by each of them on 18 October 2012, being part of the proceeds of settlement from the sale of G Street, D Town.

That within seven (7) days of the date of these Orders, the parties do all acts and things as are necessary to pay out from the St George Maxi Saver account number … containing the remaining sale proceeds from the real property situated at G Street, D Town as follows with the parties to be responsible for the tax which may be assessed against them as a result of the receipt of such amounts:

a. pay to the Husband the sum of $508,905;

b. pay to the Wife the sum of $1,041,070; and

c. any interest and accretion as follows:

i. the Husband’s percentage to the Husband; and

ii. the Wife’s percentage to the Wife.

That forthwith upon the parties’ compliance with the immediately preceding Order they will do all things and sign all documents necessary to close the St George Maxi Saver account number 420819670.

H Street

That within thirty (30) days of the date of these Orders, the Wife shall discharge the mortgage secured against the property situated at H Street, D Town in the State of Queensland more particularly described as Lot … on SP …, County of I, Parish of J, Title Reference 50220024 (“the H Street property”).

The Wife shall retain the H Street property provided always that she shall indemnify the Husband and keep him indemnified for and in respect of any and all outgoings attributable to the ownership of the property including but not limited to rates, water charges and insurance.

K Street

That within thirty (30) days of the date of these Orders, the parties do all acts to discharge the mortgage secured over the property situated at unit K Street, D Town in the State of Queensland more particularly described as Lot …, BUP …, County of I, Parish of J, Title Reference … (“the K Street property”).

That within thirty (30) days of the date of these Orders, the Wife shall transfer all of her right, title and interest in the K Street property provided always that the Husband shall indemnify the Wife and keep her indemnified for and in respect of any and all outgoings attributable to the ownership of the property including but not limited to rates, water charges and insurance.

Bank of Queensland Account Number …

10.

That within seven (7) days of the date of these Orders, the parties shall do all acts and things as are necessary to divide the balance of the Bank of Queensland account number … with the Wife to receive the Wife’s percentage and the Husband to receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

11.

Except as is provided from in the immediately preceding paragraph, upon the making of these Orders, the Wife and Husband are restrained and an injunction is granted restraining either of them from withdrawing any monies from the Bank of Queensland account number …, without the express written authority of the other party.

Downer Property Trust

12.

That within thirty (30) days of the date of these Orders, the parties do all acts and sign all documents necessary to cause the following to occur:

a. the Wife to pay the sum of $350,000 to the Downer Property Trust to purchase

the property at C Street, D Town in the State of Queensland more accurately described as Lot … on BUP 5136, County of I, Parish of J, Local Government Region L, Title Reference 16344153 (“the C Street property”);

b. contemporaneously with the Wife’s compliance with subparagraph a. above, to release the Bank of Queensland Mortgage number … secured over the C Street property;

c. contemporaneously with the Wife’s compliance with subparagraph a. above, to transfer all right, title and interest in the C Street property from M Pty Ltd as trustee for the Downer Property Trust to the Wife; and

d. to sell the property situated at N Street, O Town in the State of Queensland (“the N Street property”).

13.

That the sale of the N Street property occur on the following bases:

a. the parties shall appoint an agent of the Wife’s choosing to market and sell the property;

b. the property shall be listed with the agent for sale by private treaty with the listing price to be agreed and failing agreement the price shall be $275,000;

c. in the event that the property has not sold within one hundred and twenty (120) days of being listed for sale by private treaty then the property shall be sold by auction as agreed but failing agreement as follows:

i. the auctioneer shall be as agreed but failing agreement shall be the same as the agent to be appointed to sell the property by private treaty;

ii. the reserve price shall be 5 per cent less than the selling price;

iii. the parties shall engage a Conveyancing solicitor by agreement and failing agreement the Husband shall provide a panel of three (3) solicitors to the Wife and the Wife shall choose one (1) solicitor from the panel within seven (7) days of receiving the panel;

iv. the parties shall direct the Conveyancing solicitor to prepare a contract upon the request of the auctioneer;

v. the parties shall otherwise do all acts and things as are necessary to comply with any reasonable request made by the auctioneer;

vi. the parties shall each attend the auction and in the event the property fails to meet the reserve price, the parties shall negotiate with any interested purchaser; and

vii.the parties are each at liberty to bid on the property at auction if they choose;

d. if the property fails to sell at auction, the property shall be sold by agreement but failing agreement each party shall have liberty to apply to a Court with competent jurisdiction to seek further direction for the sale;

e. until a sale of the property is achieved:

i. the property shall continue to be tenanted;

ii. any rental income received on the property shall be applied to meet any and all cost associated with the ownership of the property including payment of the insurance, rates, water and maintenance provided that always any shortfall shall be met:

A. 60 per cent by the self managed superannuation fund; and

B. 40 per cent by the parties in accordance with their respective percentage entitlement pursuant to Order (1) hereof;

f. upon achieving sale of the property, the proceeds shall be applied as follows:

i. discharge the Bank of Queensland Mortgage number 701000339 secured over the property;

ii. pay the Real Estate Agent’s costs and commissions;

iii. pay the Conveyancing solicitors fees;

iv. pay any adjustment of water and rates;

v. pay any GST and other liability of the Trust; and

vi. the balance to be held in the Downer Property Trust and dispersed in accordance with the immediately following Order.

14.

Within thirty (30) days of the date of the sale of the N Street property, the parties shall do all acts and things as are necessary to vest the Downer Property Trust on the following bases:

a. the parties shall take accounting advice as to the most tax effective way to vest the Trust;

b. the parties shall agree upon taking such advice, as to how to vest the Trust;

c. in the event the parties are unable to agree upon the manner in which to vest the Trust within thirty (30) days hereof, the parties shall jointly instruct

Ms P of Q Accountants as single expert pursuant to Part 15.5 of the Family Law Rules to provide her opinion in relation to the most tax effective way to vest the Trust and the parties shall abide by such opinion and the Trust shall meet the expert’s fees;

d. any costs, including accounting fees, associated with the vesting of the Trust shall be met by the Trust; and

e. in the event there are to be distributions paid upon the vesting of the Trust, the Wife is to receive the Wife’s percentage and the Husband is to receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

Downer Family Trust

15.

That within thirty (30) days of the date of these Orders, the parties shall do all acts and things as are necessary to distribute any remaining funds held in the Bank of Queensland accounts numbered … and … in the name of the Downer Family Trust, with the Wife to receive the Wife’s percentage and the Husband to receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

16.

Except as is provided from in the immediately preceding paragraph, upon the making of these Orders, the Husband and Wife are restrained and an injunction is granted restraining either of them from withdrawing any monies from the Bank of Queensland accounts numbered … and …, without the express written authority of the other party.

17.

That the parties shall do all acts and things as are necessary to sell the property situated at R Street, S Town in the State of Queensland, more particularly described as Lot … on RP …, County of I, Parish of T, Title Reference … (“The R Street property”), as agreed but failing agreement as follows:

a. within thirty (30) days of the date of these Orders, the parties shall appoint

L J Hooker, Region L to market and sell the property;

b. the property shall be listed with the agent for sale by private treaty with the listing price to be agreed but failing agreement the price shall be $1,100,000;

c. in the event that the property has not sold within one hundred and twenty (120) days of being listed for sale by private treaty, then the property shall be sold by auction as agreed but failing agreement as follows:

i. the auctioneer shall be agreed, but failing agreement shall be the same as the agent appointed to sell the property by private treaty;

ii. the reserve price shall be 5 per cent less than the listing price;

iii. the parties shall engage a Conveyancing solicitor by agreement but failing agreement, the Husband shall propose a panel of three (3) solicitors and within seven (7) days thereof, the Wife shall choose one (1) solicitor from the panel;

iv. the parties shall direct the Conveyancing solicitor to prepare a contract upon the request of the auctioneer;

v. the parties shall otherwise do all acts and things as are necessary to comply with any reasonable request made by the auctioneer;

vi. the parties shall each attend the auction and in the event the property fails to meet the reserve price, the parties shall negotiate with any interested purchaser; and

vii.the parties are each at liberty to bid on the property at auction if they choose,

d. if the property fails to sell at auction, the property shall be sold by agreement but failing agreement each party shall have leave to apply to a Court with competent jurisdiction to seek further direction for the sale.

18.

Until a sale of the R Street property is achieved:

a. the property shall continue to be tenanted; and

b. any rental income received on the property shall be applied to meet any and all costs associated with the ownership of the property including repayment of the loans secured by mortgage as and when due and payment of insurances, rates, water and maintenance provided always that any shortfall shall be met by the parties in accordance with their respective percentage entitlement pursuant to Order (1) hereof.

19.

Upon the sale of the R Street property, the proceeds shall be paid as follows:

a. discharge the National Australia Bank Mortgage number … secured against the property;

b. pay the real estate agent’s costs and commission;

c. pay the Conveyancing solicitor’s fees;

d. pay any adjustments for rates and water;

e. pay any GST and any other liability of the Trust; and

f. the balance to be held in the Downer Family Trust and dispersed in accordance it the immediately following Order.

20.

Within thirty (30) days of the date of the sale of the R Street property, the parties shall do all acts and things as are necessary to vest the Downer Family Trust on the following:

a. the parties shall take accounting advice as to the most tax effective way to vest the Trust;

b. the parties shall agree upon taking such advice, as to how to vest the Trust;

c. in the event that the parties are unable to agree upon the manner in which to vest the Trust within thirty (30) days, the parties shall jointly instruct Ms P of Q Accountants as single expert pursuant to Part 15.5 of the Family Law Rules to provide her opinion in relation to the most tax effective way to vest the Trust and the parties shall abide by such opinion and the Trust shall meet the expert’s fees;

d. any costs, including accounting fees, associated with the vesting of the Trust shall be met by the Trust; and

e. in the event that there are to be distributions paid upon the vesting of the Trust, the Wife is to receive the Wife’s percentage and the Husband is to receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

U Pty Ltd

21.

That within thirty (30) days of the date of these Orders, the parties shall do all acts and things as are necessary to distribute the funds held in the St George Bank accounts numbered … and … in the name of U Pty Ltd, with the Wife to receive the Wife’s percentage and the Husband to receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

22.

Except as is provided from in the immediately preceding paragraph, upon the making of these Orders, the Husband and Wife are restrained and an injunction is granted restraining either of them from withdrawing any monies from the St George bank accounts numbered … and …, without the express written authority of the other party.

23.

Within thirty (30) days of the date of these Orders, the parties shall do all act and things as are necessary to wind up the company, U Pty Ltd, on the following:

a. the parties shall take accounting advice as to the most tax effective way of winding up the company;

b. the parties shall agree upon taking such advice, as to the wind up of the company;

c. in the event that the parties are unable to agree upon the manner in which the company shall be wound up, within thirty (30) days of the date of these Orders, the parties shall jointly instruct Ms P of Q Accountants as single expert pursuant to Part 15.5 of the Family Law Rules to provide her opinion in relation to the most tax effective way of winding up the company and the parties shall abide by such opinion and the company shall meet the expert’s fees;

d. any costs, including accounting fees, associated with the winding up of the company shall be met by the company; and

e. in the event that there are to be any dividends paid upon the winding up of the company, the Wife will receive the Wife’s percentage and the Husband will receive the Husband’s percentage and the parties shall be responsible for meeting the tax on their respective distribution.

M Pty Ltd

24.

That forthwith upon the making of these Orders, the Husband and Wife do all acts and sign all documents necessary to appoint the Wife as a director of M Pty Ltd.

25.

That forthwith upon the making of these Orders, the Husband and Wife shall do all acts and things and sign all documents as are necessary to sell the business, M Pty Ltd.

26.

That M Pty Ltd be listed for sale with Mr V, Executive, W Business Sales and that in relation to the listing the following shall apply:

a. that both parties are at liberty to liaise with the listing agent to discuss the sale of the business;

b that if the business is to be listed at a price, then the price shall be agreed, but failing agreement be in accordance with Ms P’s report;

c. that the parties shall direct and this Order shall act as an authority directing the listing broker to notify each party of any offer received in relation to the sale within twenty-four (24) hours of such offer being received;

d. that no offer in relation to the sale of the business should be accepted without the express written agreement of both parties;

e. that the sale shall be a confidential sale;

f. that neither party say or do anything that might hinder or prevent the sale being affected or the performance of the business suffering;

g. that the Husband and Wife ensure that the business premises be kept in a neat and clean condition at the time of inspection by the agent and prospective purchasers;

h. that the parties cooperate with the agent to allow prospective purchasers to attend the company premises at all reasonable times to inspect the premises;

i. the parties shall direct and this Order shall act as an authority directing the listing broker to notify each party of any inspection of the premises at least twenty-four (24) hours prior to such inspection taking place;

j. that both parties sign all documents requested by the agent in relation to the listing for sale of the business, except a contract for sale that has not been agreed to by both parties in writing;

k. that each party make themselves available for a reasonable time at an appropriate remuneration to facilitate the transition of the business to the purchaser(s);

l. that each party provide a reasonable restraint of trade if required by the purchaser(s); and

m. that otherwise the terms and conditions, including marketing campaign, is to be by agreement by the parties.

27.

That pending the sale of M Pty Ltd, the Husband and Wife cause to be provided to each other, by M Pty Ltd, by the 21st day of each month, monthly reporting relating to the immediately previous month, including:

a. trading account;

b. profit and loss statement;

c. balance sheet;

d. aged debtor trial balance;

e. aged creditor trial balance;

d. general ledger print outs for both directors’ loan accounts;

e. work in progress amount, if not shown in trading account;

f. details of any inter-entity transactions; and

g. details of travel, accommodation and vehicle expenses.

28.

That from the date of these Orders, until the sale of M Pty Ltd, the Husband and the Wife will receive equal remuneration and benefits from the business/company and the amount of the income and benefits to be received will be as agreed between the parties, from time to time, in writing.

29.

Upon the sale of the business, the proceeds of sale shall be applied as follows:

a. the payment of any and all trade creditors of the business as agreed between the parties in writing;

b. the payment of any and all credit card balances of the business relating to business expenses only as agreed between the parties in writing;

c. the payment of any and all employee entitlements including superannuation;

d. the payment of any and all business tax, including inter alia GST, owing;

e. the payment of any and all hire purchase agreements, not otherwise refinanced by the purchaser of the business;

f. the payment of any and all other business expenses as agreed between the parties; and

g. the balance distributed as outlined in Order (31) hereof.

30.

That following the sale of the business, the parties in their role as directors will continue to operate M Pty Ltd for the purposes of collecting any and all monies owning to the business/company by debtors (as at the date of sale) on the following bases:

a. the parties will ensure that any and all debtors pay in full the amount owed to the business/company and in the event that the debts are not repaid in accordance with the billing procedures of the business:

i. the parties will commence debt recovery action against the debtor for the amount outstanding or institute proceedings in a Court with competent jurisdiction; or

ii. in the event that the parties consider that the debt is a bad debt unlikely of being recoverable, they may agree in writing to write off the debt;

iii.any and all monies that are recovered by the parties will be distributed as outlined in the immediately following paragraph.

31.

Upon the parties’ compliance with Order (30) hereof, the balance of the proceeds of sale, will be distributed on the following basis:

a. “A” = the value of the proceeds of sale referred to in Orders (29(g)) and (30) hereof;

b. “B” = the agreed net value of any assets owned by the business/company, which the Husband is desirous of retaining;

c. “C” = the agreed net value of any assets owned by the business/company, which the Wife is desirous of retaining;

d. “D” = A + B + C;

e. the Husband will retain the Husband’s percentage of D, less the amount of B and;

f. the Wife will retain the wife’s percentage of D, less the amount of C.

32.

Within thirty (30) days of the date of the distribution referred to in the immediately preceding paragraph, the parties shall do all act and things as are necessary to wind up the company, M Pty Ltd, on the following bases:

a. the parties shall take accounting advice as to the most tax effective way of winding up the company;

b. the parties shall agree upon taking such advice, as to the wind up of the company;

d. any costs, including accounting fees, associated with the winding up of the company shall be met by the company; and

33.

In the event that the parties are unable to achieve a sale of the business twelve (12) months from the date of these Orders, the business shall be sold by agreement but failing agreement, each party shall have liberty to apply to a Court with competent jurisdiction to seek further direction for the sale, if at all necessary.

Related Party Loans

34.

That forthwith upon the signing of these Orders, the Husband and Wife will do all acts and things and sign all documents necessary to cause:

a. M Pty Ltd to loan monies to the Husband and Wife in order to enable the Husband and Wife to cause to repay their loan accounts to U Pty Ltd;

b. the repayment of the Husband’s and Wife’s loan accounts to U Pty Ltd; and

c. the repayment by U Pty Ltd of its loan account to M Pty Ltd.

The Downer Superannuation Fund

35.

That Orders (35) to (44) (inclusive) of these Orders are binding on the Trustee of the Downer Superannuation Fund (“the fund”).

36.

That within thirty (30) days of the date of the settlement of the sale of the N Street property (“the operative date”), the Husband and Wife do all acts and things and sign all documents necessary to instruct and direct the accountants of the fund to do such acts and prepare such documents as is necessary to calculate the net member benefit of the Husband and the Wife in the fund.

37.

Upon the parties’ net member benefits in the fund being calculated, in accordance with s 90MT(1)(b) of the Family Law Act 1975, the Husband is entitled to a split of 100 per cent of the Wife’s interest in the fund and the Wife’s entitlement in the fund is correspondingly reduced.

38.

Contemporaneously with the split referred to in the immediately preceding Order, in accordance with s 90MT(1)(b) of the Family Law Act 1975, the Wife is entitled to split of the Husband’s interest in the fund to an amount equal to the

Wife’s percentage and the Husband’s entitlement in the fund is correspondingly reduced.

39.

Following the split referred to in the immediately preceding paragraph, the Husband and Wife shall do all such acts and things and sign all documents as may be necessary, including but not limited to, exercising the request pursuant to Rule 7A06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the roll over or transfer of the transferrable benefits out of the Wife’s interest in the fund to another fund of the Wife’s choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulation 1994 provided always that such fund be capable of receiving an in species roll out.

40.

The rollover of the Wife’s interest in the fund be an in species transfer of the assets in the fund.

41.

That contemporaneously with the rollover of the Wife’s interest in the fund:

a. the Wife resign and cease to be a member of the fund; and

b. the Husband and Wife do all acts and sign all documents necessary to appoint a new trustee of the Husband’s choosing to the fund at the expense of the Husband.

42.

That the Husband indemnify the Wife in relation to all liability arising under any loans and/or guarantees and/or indemnities given by the Wife in relation to the fund for which the Wife may be liable arising from the course of the marriage and forthwith provide a release to the Wife from such loans and/or guarantees and/or indemnities.

43.

That the Husband indemnify the Wife and keep her indemnified in relation to all actions, claims or demands by the Commissioner of Taxation in relation to any taxation liability (including income tax, Capital Gains Tax, GST or Fringe Benefits Tax) that the Wife may incur by way of assessment, reassessment, penalties or interest or tax howsoever arising as a result of her involvement or association as a director or shareholder or employee of the fund.

44.

That any and all expenses incurred by the fund as a result of giving effect to these Orders be met by the fund prior to the value of the fund being determined pursuant to Order (36) hereof.

Residual Property

45.

The Wife shall retain free from any and all claims of the Husband the following:

a. her investment in Y Farm;

b. any bank deposits in her name;

c. the furniture, jewellery and chattels currently in her possession; and

d. all other proprietary interests of whatsoever nature in the Wife’s current possession or control.

46.

The Husband is to retain free from any and all claims of the Husband the following:

a. his Sailing Boat;

b. any bank deposits in his name;

c. the furniture and chattels currently in his possession; and

d. all other proprietary interests of whatsoever nature in the Husband’s current possession or control.

General

47.

That save and except for the property and financial resources dealt with pursuant to the terms of these Orders, each party retain, without claim from the other, as his or her own property absolutely, all assets and/or all financial resources of whatsoever description and wheresoever situated of which that party is the legal owner or which is/are in the possession and/or control of that party as and from the date of these Orders.

48.

That the Husband and Wife each be responsible for all liabilities incurred in their name including all borrowings, personal loan and credit card facilities and shall indemnify and keep indemnified the other against any other liability that may occur in respect thereof.

49.

That each party be responsible for any capital gains tax and/or any other tax and/or costs incurred as a consequence of the disposal by that party of any assets or resources either being transferred to and/or retained by him or her pursuant to the provision herein and each party shall indemnify the other and keep the other indemnified in respect of any taxation liability arising from the disposal of such assets and/or resources.

50.

That the spouse receiving the benefit of any transaction prepare the legal documentation necessary to give effect to the provisions of these Orders at their cost and further be responsible for payment of all registration fees, stamp duty and/or other outgoings in relation to the transfer of the property into their name.

51.

That the Husband and Wife each do all acts and procure the doing of all things and sign procure the signing of all documents necessary to give full force and effect to the provisions of these Orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court at Brisbane is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this Order.

52.

That the parties promptly comply with all requisitions issued by the Office of State Revenue, Land Titles, Main Roads Department and any other government department in relation to any document executed or transacted pursuant to or put into effect the terms and conditions of these Orders.

53.

That either party have liberty to apply to the Court on the giving of seven (7) days notice in writing to the other for the interpretation and/or enforcement of the Terms and Conditions hereof and for consequential Orders.

54.

Whenever these Orders impose an obligation upon either or both parties, such obligation is also imposed upon:

a. each party in their capacity as a director, shareholder, partner, trustee, appointor of a trust or any other capacity connected with the operation of any company business or trust in which they have an interest or which either of them controls; and

b. their servants or agents.

55.

Whenever these Orders require the parties or any company or trust in which they have an interest to enter into or complete any contract or other transaction the parties shall do all acts and things to ensure:

a. that the transaction is completed in a timely way;

b. that the transaction is structured in such a way as to provide the maximum financial returns to the parties; and

c. that the transaction is structured in such a way as to minimise the incidence of taxation and/or stamp duties to the extent permitted by law.

56.

That the parties acknowledge that the terms of these Orders are intended to end their financial relationship as far as possible in relation to property settlement pursuant to the provisions of s 81 of the Family Law Act.

IT IS FURTHER ORDERED:

Costs

57.

The Wife file and serve written submissions with regard to costs (including the costs relating to the Husband’s Application in a Case filed 8 March 2013), within fourteen (14) days of today’s date, with the Husband to respond within fourteen (14) days after receipt of the Wife’s submissions.

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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