Eastwick and Eastwick - [2014] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTWICK & EASTWICK

[2014] FCCA 2016

Catchwords:
FAMILY LAW – Property – undefended hearing.

Legislation:

Family Law Act 1975, ss.79(4), 75(2), Part VIII, s.117(2)(A)

Stanford v Stanford [2012] HCA 52

AJO & GRO (2005) FLC 93-218

Applicant:

MR EASTWICK

Respondent:

MS EASTWICK

File Number:

BRC 5140 of 2013

Judgment of:

Judge Coates

Hearing date:

14 July 2014

Date of Last Submission:

24 July 2014

Delivered at:

Brisbane

Delivered on:

9 September 2014

REPRESENTATION

Solicitors for the Applicant:

Madsen Law

Solicitors for the Respondent:

Self -Represented

ORDERS

That the net pool of assets for division between the parties be constituted as follows:

ASSETS

Property

Owner

Held by

Value

Property P, Queensland

Husband and wife

Wife

$360,000.00

52% interest in Property Q, Queensland

Husband & husband’s son

Husband

$268,840.00

(omitted) Bank account number (omitted)

Husband

Husband

$1,568.00

(omitted) Bank account number (omitted)

Husband

Husband

$8,500.00

(omitted) 6 Sound Console

Husband

Husband

$35,000.00

Share Portfolio

Husband

Husband

$276,779.00

(omitted) Mercedes-Benz registration (omitted)

Husband

Husband

$12,000.00

(omitted) Mazda 6 registration (omitted)

Wife

Wife

$25,000.00

Kubota Tractor

Husband

Wife

$22,000.00

Music and sound equipment

Husband

Husband

$24,000.00

Property V, (NZ) ($220,000 NZD)

Husband and wife

Husband and wife

*$204,600.00

(omitted) Bank Account (omitted) ($8,900 NZD)

Husband and wife

Husband and wife

*$8,277.00

Bank accounts

Wife

Wife

Working balance

Partial property settlement

Wife

Wife

$10,000.00

TOTAL

$1,256,564.00

LIABILITIES

(omitted) Bank (NZ) Mortgage

Husband and wife

Husband and wife

$97,323.75

2012/2013 tax liability

Husband

Husband

$27,237.00

SUBTOTAL

$124,560.75

NET NON-SUPER POOL

$1,132,003.25

SUPERANNUATION

Superannuation (various)

Wife

Wife

$10,000.00

TOTAL PROPERTY POOL

$1,142,003.25

* Denotes exchange rate from New Zealand Dollars to Australian Dollars as at 08/07/2014 at $1 NZ = $0.93 AUD

That the net assets of the parties referred to in Order 1 be divided as to 85% to the husband and 15% to the wife.
To give effect to the division referred to in Order 2, Orders 4 to 10 apply.
That the husband forthwith retain as his absolute property, the title and possession of and the wife forthwith relinquish and transfer to the husband all rights, title and claim, if any, to and in:
(a)Property Q, Queensland;
(b)(omitted) Bank accounts numbered (omitted) and (omitted);
(c)The husband’s share portfolio;
(d)The husband’s (omitted) 6 Sound Console;
(e)The husband’s (omitted) Mercedes-Benz registration number (omitted);
(f)The husband’s Kubota Tractor and Accessories;
(g)The husband’s music and sound equipment; and
(h)The husband’s personal effects and chattels in the possession of the wife held at Property P, Queensland and referred to in Schedule 1 hereto (nominal value).
That the wife forthwith retain as her absolute property, the title and possession of and the husband forthwith relinquish and transfer to the wife all rights, title and claim, if any to and in:
(a)The wife’s bank accounts;
(b)The balance of the household furniture and chattels (nominal value);
(c)The Mazda 6 motor vehicle registration number (omitted); and
(d)The wife’s superannuation entitlements.
That the former matrimonial home situated at Property P more particularly described as (omitted) County of (omitted)…

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 Eastwick and Eastwick

Details

AGLC: Eastwick and Eastwick [2014] FCCA 2016
Case: [2014] FCCA 2016
Decision Date: 9 September 2014

CaseChat Overview and Summary

This case concerned the division of assets between a husband and wife, heard by Judge Coates. The dispute involved a net pool of assets valued at $1,142,003.25, which included various properties in Queensland and New Zealand, bank accounts, a share portfolio, vehicles, and superannuation entitlements, as well as liabilities such as a New Zealand mortgage and tax liabilities.

The court was required to determine the appropriate percentage split of the net asset pool between the husband and wife and to make consequential orders to give effect to that division. This involved identifying which party would retain specific assets and liabilities, and how the sale of the former matrimonial home and a New Zealand property would be managed.

Judge Coates ordered that the net assets be divided as to 85% to the husband and 15% to the wife. To implement this, the husband was to retain certain assets including Property Q, his share portfolio, and his vehicles. The wife was to retain her bank accounts and her motor vehicle. The former matrimonial home was to be sold, with the net proceeds to be applied first to reimburse the husband for certain payments, then to ensure the wife received her 15% share of the total property pool after accounting for retained assets, and the balance to the husband. The husband was appointed trustee to facilitate the sale of the matrimonial home, with the wife required to vacate within 28 days. The husband was also to take sole ownership of the New Zealand property, refinancing the associated mortgage into his name and indemnifying the wife against any liability. The Registrar was appointed to execute documents if the wife failed to do so. The wife was ordered to pay the husband's costs of the proceedings.

Orders

Orders of the court

That the net pool of assets for division between the parties be constituted as follows:

ASSETS

Property

Owner

Held by

Value

Property P, Queensland

Husband and wife

Wife

$360,000.00

52% interest in Property Q, Queensland

Husband & husband’s son

Husband

$268,840.00

(omitted) Bank account number (omitted)

Husband

$1,568.00

(omitted) Bank account number (omitted)

Husband

$8,500.00

(omitted) 6 Sound Console

Husband

$35,000.00

Share Portfolio

Husband

$276,779.00

(omitted) Mercedes-Benz registration (omitted)

Husband

$12,000.00

(omitted) Mazda 6 registration (omitted)

Wife

$25,000.00

Kubota Tractor

Husband

Wife

$22,000.00

Music and sound equipment

Husband

$24,000.00

Property V, (NZ) ($220,000 NZD)

Husband and wife

*$204,600.00

(omitted) Bank Account (omitted) ($8,900 NZD)

Husband and wife

*$8,277.00

Bank accounts

Wife

Working balance

Partial property settlement

Wife

$10,000.00

TOTAL

$1,256,564.00

LIABILITIES

(omitted) Bank (NZ) Mortgage

Husband and wife

$97,323.75

2012/2013 tax liability

Husband

$27,237.00

SUBTOTAL

$124,560.75

NET NON-SUPER POOL

$1,132,003.25

SUPERANNUATION

Superannuation (various)

Wife

$10,000.00

TOTAL PROPERTY POOL

$1,142,003.25

* Denotes exchange rate from New Zealand Dollars to Australian Dollars as at 08/07/2014 at $1 NZ = $0.93 AUD

That the net assets of the parties referred to in Order 1 be divided as to 85% to the husband and 15% to the wife.

To give effect to the division referred to in Order 2, Orders 4 to 10 apply.

That the husband forthwith retain as his absolute property, the title and possession of and the wife forthwith relinquish and transfer to the husband all rights, title and claim, if any, to and in:

(a) Property Q, Queensland;

(b) (omitted) Bank accounts numbered (omitted) and (omitted);

(d) The husband’s (omitted) 6 Sound Console;

(e) The husband’s (omitted) Mercedes-Benz registration number (omitted);

(f) The husband’s Kubota Tractor and Accessories;

(g) The husband’s music and sound equipment; and

(h) The husband’s personal effects and chattels in the possession of the wife held at Property P, Queensland and referred to in Schedule 1 hereto (nominal value).

That the wife forthwith retain as her absolute property, the title and possession of and the husband forthwith relinquish and transfer to the wife all rights, title and claim, if any to and in:

(a) The wife’s bank accounts;

(b) The balance of the household furniture and chattels (nominal value);

(d) The wife’s superannuation entitlements.

That the former matrimonial home situated at Property P more particularly described as (omitted) County of (omitted) and being all that land comprised on Certificate of Title Reference Number (omitted) be sold and the net proceeds of sale (after deducting any real estate agent costs and commission, payment of any unpaid rates and the conveyancing solicitor’s costs) be applied in the following manner:

(a) Reimbursement to the husband of any monies paid by him pursuant to Order 7(d) or (e) hereof;

(b) To the wife such sum as to deliver to the wife 15% of the total property pool after taking into account the items retained (and their ascribed value) by the wife in Order 5 hereof and the items retained by the husband (and their ascribed value) in Orders 4 and 9 hereof; and

That in order to give full force and effect to Order 6, the husband is appointed Trustee on behalf of the wife to do all acts and sign all documents on behalf of the wife, to effect the sale of the said property, including but not limited to:

(a) Appointing a real estate agent or agents to sell the property as the husband sees fit;

(b) Determining the list price for the property;

(c) Determining when to place the property on the market for sale, which in any event shall not be any later than twelve (12) months from the date of this Order;

(d) Determining (under advisement from the real estate agent appointed, if thought desirable) if any repairs or improvements ought to be carried out to the property, and if so, the husband shall in his absolute discretion and at the husband’s expense, carry out those improvements or any of them so as to improve the prospects of selling the property;

(e) Payment by the husband of any additional advertising costs or expenses to the real estate agent;

(f) Signing any contract for the sale of the property for and on behalf of the husband and wife;

(g) Signing any land transfer deed, document or instrument on behalf of the husband and the wife; and

(h) Appointing a solicitor to conduct the conveyancing transaction on behalf of the parties.

That so as to give full force and effect to Order 6, the wife shall, within twenty eight (28) days of being served a written notice (which may be served by email) by the husband to do so, permanently vacate the former matrimonial home (which shall include the removal of her personal effects and chattels, pursuant to these Orders) and not to re-enter the dwelling house or upon the land except with the prior written consent of the husband. Furthermore, the husband is permitted to and this Order authorises him to do so, call in aid of this Order the Queensland Police to remove the wife if she should fail or refuse to remove herself within the said twenty eight (28) day time period.

That on or before sixty (60) days from the date of this Order the husband and wife shall do all acts and sign all documents so as to effect the transfer to the husband of all of the wife’s right title and interest in the parties’ real property situated at Property V, New Zealand more particularly described as (omitted) Certificate of Title Reference number (omitted) and so as to give full force and effect to this Order:

(a) The husband shall prepare, at his expense, the prescribed land information New Zealand transfer documentation and deliver same to the wife for execution by her within fourteen (14) days of the date of this Order;

(b) The wife shall take all steps to properly execute and have properly witnessed the prescribed land information New Zealand transfer documentation and return same to the husband for execution by him within twenty eight (28) days of the date of this Order; and

(c) The husband shall pay, if and when due, all monies payable with respect to stamp duty and/or land information New Zealand lodgement fees with respect to the transfer.

10.

That contemporaneously with the transfer referred to in Order 9 hereof, the husband and wife shall do all acts and sign all documents so as to refinance the mortgage to the (omitted) Bank (NZ) secured over the property referred to in Order 9 and refinance that mortgage into the husband’s sole name so as to cause the wife to be release from all personal covenants, guarantees and liability under that mortgage and in the meantime the husband indemnify and keep the wife indemnified from all liability howsoever arising therein.

11.

That in the event the wife fails, refuses or neglects to execute any deed, instrument or documentation necessary to give effect to Order 9 or 10 made herein, then the Registrar of the Federal Circuit Court of Australia shall be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or Instrument and do all acts and things necessary to give validity and operation to the said deed, instrument or document.

12.

That within fourteen (14) days of the date of these Orders the wife shall make available for collection by the husband the items listed in Schedule 1 of these Orders.

13.

That the wife pay the husband’s costs of and incidental to these proceedings, if not agreed then to be taxed on the Family Court scale and that such costs be referred for taxation under Chapter 19 of the Family Law Rules 2004 to be conducted by the Family Court of Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

ASSETS
Property	Owner	Held by	Value
Property P, Queensland	Husband and wife	Wife	$360,000.00
52% interest in Property Q, Queensland	Husband & husband’s son	Husband	$268,840.00
(omitted) Bank account number (omitted)	Husband	Husband	$1,568.00
(omitted) Bank account number (omitted)	Husband	Husband	$8,500.00
(omitted) 6 Sound Console	Husband	Husband	$35,000.00
Share Portfolio	Husband	Husband	$276,779.00
(omitted) Mercedes-Benz registration (omitted)	Husband	Husband	$12,000.00
(omitted) Mazda 6 registration (omitted)	Wife	Wife	$25,000.00
Kubota Tractor	Husband	Wife	$22,000.00
Music and sound equipment	Husband	Husband	$24,000.00
Property V, (NZ) ($220,000 NZD)	Husband and wife	Husband and wife	*$204,600.00
(omitted) Bank Account (omitted) ($8,900 NZD)	Husband and wife	Husband and wife	*$8,277.00
Bank accounts	Wife	Wife	Working balance
Partial property settlement	Wife	Wife	$10,000.00
TOTAL	$1,256,564.00
LIABILITIES
(omitted) Bank (NZ) Mortgage	Husband and wife	Husband and wife	$97,323.75
2012/2013 tax liability	Husband	Husband	$27,237.00
SUBTOTAL	$124,560.75
NET NON-SUPER POOL	$1,132,003.25
SUPERANNUATION
Superannuation (various)	Wife	Wife	$10,000.00
TOTAL PROPERTY POOL	$1,142,003.25