FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRURY & BENSON (No.2) | [2020] FCCA 250 |
| Catchwords: FAMILY LAW – Property – where the parties were in a de facto relationship for approximately 10 years – whether various addbacks should be included in the property pool – whether an alleged loan from the Applicant’s parents should be brought to account – whether the Applicant should receive a Kennon adjustment – orders made for the pool to be divided 60/40 in favour of the Applicant. |
| Legislation: Family Law Act 1975 (Cth), ss.90RD, 90SM, 90SM(3), 90SM(4), 90SF(3) |
| Cases cited: Benson & Drury [2017] FamCA 578 |
| Applicant: | MS DRURY |
| Respondent: | MR BENSON |
| File Number: | ADC 3749 of 2015 |
| Judgment of: | Judge Kari |
| Hearing dates: | 17 July 2019, 19-20 August 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 10 February 2020 |
REPRESENTATION
| Counsel for Ms Drury: | Ms Pyke QC |
| Solicitors for Ms Drury: | D'Angelo Lawyers |
| Counsel for Mr Benson: | Mr Praolini |
| Solicitors for Mr Benson: | Newman Lawyers |
UPON NOTING
(A)That a contract for the sale of the former relationship home situate at D Street, Suburb E was executed and settlement was to occur on 31 January 2020.
ORDERS
That pursuant to section 90RD of the Family Law Act 1975 there be a declaration that a de facto relationship existed between the parties between 2004 and 4 November 2014.
That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property under Part VIIIAB of the Family Law Act 1975 as amended:
(a)That the proceeds from the sale of the former relationship home situate at D Street, Suburb E in the State of South Australia (after the payment of all agents fees and commissions and the costs of sale) shall be distributed as follows:
(i)SIXTY PERCENTUM (60%) to Ms Drury; and
(ii)FORTY PERCENTUM (40%) to Mr Benson.
(b)That on or before 90 days of the date of these Orders, Mr Benson shall pay to Ms Drury the sum of SIX HUNDRED AND FIFTEEN THOUSAND SEVEN HUNDRED AND TWENTY SIX DOLLARS ($615,726).
(c)That contemporaneously with the payment referred to in Order (2)(b), Ms Drury shall do all things and sign all documents necessary to withdraw the caveat registered against the property situate at KK Street, Suburb EE in the State…
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- AGLC
- DRURY & BENSON (No.2) [2020] FCCA 250
- Case
- [2020] FCCA 250
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the principles governing the division of property in de facto relationships under Part VIIIAB of the *Family Law Act 1975*. Judge Kari considered the evidence presented regarding the alleged loan and the various addbacks, applying established legal principles to determine their relevance and impact on the property pool. The court ultimately made declarations regarding the existence of the de facto relationship and proceeded to make orders for the final settlement of property.
The orders made by Judge Kari provided for the proceeds from the sale of the former relationship home to be distributed with 60% allocated to Ms Drury and 40% to Mr Benson. Additionally, Mr Benson was ordered to pay a specific sum to Ms Drury within 90 days, with provisions for interest and the potential sale of another property should he default. The orders also clarified the responsibility for various liabilities, including a loan to Mr Benson's mother, and stipulated that each party would retain their respective assets not otherwise dealt with in the orders.
Orders
Orders of the court
ORDERS
1. That pursuant to section 90RD of the Family Law Act 1975 there be a declaration that a de facto relationship existed between the parties between 2004 and 4 November 2014.
2. That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property under Part VIIIAB of the Family Law Act 1975 as amended:
2. (a) That the proceeds from the sale of the former relationship home situate at D Street, Suburb E in the State of South Australia (after the payment of all agents fees and commissions and the costs of sale) shall be distributed as follows:
2. (i) SIXTY PERCENTUM (60%) to Ms Drury; and
2. (ii) FORTY PERCENTUM (40%) to Mr Benson.
2. (b) That on or before 90 days of the date of these Orders, Mr Benson shall pay to Ms Drury the sum of SIX HUNDRED AND FIFTEEN THOUSAND SEVEN HUNDRED AND TWENTY SIX DOLLARS ($615,726).
2. (c) That contemporaneously with the payment referred to in Order (2)(b), Ms Drury shall do all things and sign all documents necessary to withdraw the caveat registered against the property situate at KK Street, Suburb EE in the State of South Australia, being Caveat number …21, at her sole cost.
2. (d) That in the event that Mr Benson defaults in the payment due to Ms Drury in accordance with Order (2)(b):
2. (i) Interest shall accrue on the outstanding amount due to Ms Drury at the rate prescribed by Rule 17.03 of the Family Law Rules 2004 from the date of default until the date of payment; and
2. (ii) If such default continues for a period in excess of 28 days, the parties shall do all acts and things and sign all documents necessary to effect the sale of the property situate at KK Street, Suburb EE in the State of South Australia and for that purpose the following shall apply:
2. A. The KK Street, Suburb EE property shall be sold upon such terms and conditions as agreed between the parties and in default of agreement, as ordered by the Court.
2. B. Mr Benson shall direct and authorise the real estate agent and conveyancer appointed to conduct the sale and settlement of the KK Street, Suburb EE property to communicate with Ms Drury and provide to her any information that she may request with regard to the sale and settlement.
2. C. On settlement, the proceeds of the sale of the KK Street, Suburb EE property (after the payment of all agents fees and commissions and the costs of sale) shall be distributed as follows:
2. (a) To Ms Drury such sum as is outstanding pursuant to paragraph 2(b) herein together with interest pursuant to paragraph 2(d)(i) herein; and
2. (b) The balance to Mr Benson.
2. (e) Unless otherwise specified in these Orders, Ms Drury shall retain for her sole use and benefit absolutely free from any further claim or demand of Mr Benson:
2. (i) All items of furniture, household effects and personal effects in her possession, power and control;
2. (ii) All savings, shares and investments in her sole name;
2. (iii) Her superannuation entitlements with Super Fund 1; and
2. (iv) Any other real and/or personal property and/or financial resources in her sole name and/or possession not otherwise specified herein.
2. (f) Unless otherwise specified in these orders, Mr Benson shall retain for his sole use and benefit absolutely free from any further claim or demand of Ms Drury:
2. (i) His interest in the property situate at KK Street, Suburb EE in the State of South Australia;
2. (ii) His equity in the business LL;
2. (iii) All items of furniture, household effects and personal effects in his possession, power and control;
2. (iv) All savings, shares and investments in his sole name;
2. (v) His superannuation entitlements with Super Fund 2; and
2. (vi) Any other real and/or personal property and/or financial resources in his sole name and/or possession not otherwise specified herein.
2. (g) Mr Benson shall be solely responsible for the loan to his mother in relation to the KK Street, Suburb EE property and any other liability in his name not otherwise dealt with in these Orders and he shall fully and forever indemnify and keep indemnified Ms Drury from all liability arising in relation to the same.
2. (h) Ms Drury shall be solely responsible for any liability in her name not otherwise dealt with in these Orders and she shall fully and forever indemnify and keep indemnified Mr Benson from all liability arising in relation to the same.
3. That each party sign all documents and do all things necessary to give effect to these Orders.
4. That in the event that either party refuses or neglects to execute any deed or instrument the registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or the instrument.
5. Liberty to the parties to apply as to consequential orders.
6. That all outstanding applications be otherwise dismissed.
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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