ELDER & ELDER - [2010] FamCA 50

FAMILY COURT OF AUSTRALIA

ELDER & ELDER

[2010] FamCA 50

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – business valuation – Contributions – initial contributions, compensation settlement – Adjustments – Just and equitable

Family Law Act 1975 (Cth) ss 75 & 79

InGriffiths v Kerkemeyer (1977) 139 CLR 161
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Phillips and Phillips [2002] FamCA 350; (2002) 29 Fam LR 128; (2002) FLC 93-104
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
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 Robb (1994)18 Fam LR 489

APPLICANT:

Ms Elder

RESPONDENT:

Mr Elder

FILE NUMBER:

SYC

4828

2008

DATE DELIVERED:

29 January 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

12 & 13 November 2009

REPRESENTATION:

COUNSEL FOR THE APPLICANT WIFE:	Mr P Campton
SOLICITOR FOR THE APPLICANT:	Searle & Associates Lawyers

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr G Gould

SOLICITOR FOR THE RESPONDENT:

York Family Law

Orders

That within 30 days from the date of the making of these Orders, the husband do all acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property situated at and known as C property in the State of New South Wales being the whole of the land in Folio Identifier … free of encumbrance ("the C property").
That simultaneously with the husband's compliance with Order 1 hereof, the husband pay to the wife or as she may direct the sum of $380,600 by way of property settlement.
That simultaneously with the husband's compliance with Orders 1 & 2 hereof, the wife do all acts and things and sign all necessary documents to transfer to the husband all her right title and interest in:
3.1The property known as and situated at E in the State of New South Wales being the whole of the land in Folio Identifier … ("the E property"); and
3.2The property situated at and known as M being the whole of the land in Folio Identifier … subject to the encumbrance thereon ("the M property");
That simultaneously with the wife's compliance with the above Order 3 hereof, the husband do all acts and things and sign all necessary documents to refinance the mortgage and release the wife and otherwise indemnify and keep her indemnified in relation to the M property mortgage.

Sale of property in event of Husband's Default

That in the event that the husband omits, neglects or fails to fully comply with Order 2 or 4 hereof, then, forthwith…

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 ELDER & ELDER

Details

AGLC: ELDER & ELDER [2010] FamCA 50
Case: [2010] FamCA 50
Decision Date: 29 January 2010

CaseChat Overview and Summary

This matter concerned property settlement orders made by Judicial Registrar Loughnan between a husband and wife. The dispute involved the division of various assets, including real estate, a motor vehicle, and interests in a company and a trust. The orders detailed the transfer of property and payment of a sum of money between the parties, with specific provisions for the sale of certain properties in the event of default.

The court was required to determine the terms of the property settlement, including the transfer of specific properties, the payment of a lump sum, and the division of other assets. A significant issue was the mechanism for the sale of the "M property" and potentially the "E property" in the event of the husband's default in complying with the payment and refinancing orders. The court also had to address the distribution of proceeds from any such sale and the declaration of sole ownership of various other assets and interests.

The Judicial Registrar applied principles of property settlement under the *Family Law Act 1975* (Cth) to achieve a division of the parties' assets. The orders reflect a comprehensive approach to asset distribution, including the transfer of the "C property" to the wife and the "E" and "M properties" to the husband, subject to the husband's payment of $380,600 to the wife. Crucially, detailed provisions were made for the sale of the "M property" by private treaty or public auction if the husband failed to comply with his payment and refinancing obligations, with a clear priority for the distribution of sale proceeds. The orders also declared the husband and wife as the sole beneficial owners of specific assets and interests, and stipulated that each party would retain their respective superannuation interests.

Orders

Orders of the court

That within 30 days from the date of the making of these Orders, the husband do all acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property situated at and known as C property in the State of New South Wales being the whole of the land in Folio Identifier … free of encumbrance ("the C property").

That simultaneously with the husband's compliance with Order 1 hereof, the husband pay to the wife or as she may direct the sum of $380,600 by way of property settlement.

That simultaneously with the husband's compliance with Orders 1 & 2 hereof, the wife do all acts and things and sign all necessary documents to transfer to the husband all her right title and interest in:

3.1 The property known as and situated at E in the State of New South Wales being the whole of the land in Folio Identifier … ("the E property"); and

3.2 The property situated at and known as M being the whole of the land in Folio Identifier … subject to the encumbrance thereon ("the M property");

That simultaneously with the wife's compliance with the above Order 3 hereof, the husband do all acts and things and sign all necessary documents to refinance the mortgage and release the wife and otherwise indemnify and keep her indemnified in relation to the M property mortgage.

Sale of property in event of Husband's Default

That in the event that the husband omits, neglects or fails to fully comply with Order 2 or 4 hereof, then, forthwith the parties do all acts and things to list the M property for sale for the best price reasonably obtainable in the following manner:-

5.1 list the M property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

5.2 the sale price at which the M property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”), the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;

5.3 the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the M property is first listed pursuant to paragraph (a) hereof and thereafter at three (3) calendar monthly intervals until the M property is sold, nominate a sale price other than the originally nominated sale price;

5.4 the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):

5.4.1 making the key available to the agent;

5.4.2 allowing inspection of the M property at all reasonable times requested by the agent;

5.4.3 doing or saying nothing to hinder or prevent a sale being effected;

5.4.4 ensuring the M property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

5.4.5 signing all documents requested by the agents in relating to the listing for sale of the M property except a contract or agreement for sale which has not been authorised by the parties solicitors;

5.5 the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to Order 5.4.2 and 5.4.3 hereof;

5.6 the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within fourteen (14) days of the date of this order coming into operation shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

5.7 neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the M property or to any commission;

5.8 the party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the M property;

5.9 if the agent shall certify in writing to the parties’ solicitors it is reasonably necessary for the work specified in such notice to be carried out to the M property so as to assist in effecting a sale and provided the cost of any such work is less than $5,000 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale.

That in the event the M property is not sold by private treaty within three months from the date of Order 5 becoming operative, then:

6.1 the parties shall list the M property for sale by public auction with the agent appointed pursuant to Order 5.1 hereof;

6.2 the reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the M property is first listed for sale in accordance with Order 6.1 hereof or in the absence of agreement a price determined by the valuer appointed pursuant to Order 5.2 and 5.3 hereof;

6.3 in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the M property at a price which is not more than 5% below the reserve price;

6.4 if the M property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the M property for sale by public auction again, on a date nominated by the said agent and at such auction the relevant provisions in Orders 5 and 6 hereof shall apply mutatis mutandis.

That in the event that Order 5 and/or 6 come into operation, then the proceeds of sale of the M property shall be paid in the following manner and priority:

7.1 all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties).

7.2 the amounts required to discharge the M property Mortgage;

7.3 the amounts required to pay all municipal and water rates outstanding with respect to the M property;

7.4 the amount required to repay to the party carrying out work for the M property for the cost of such work carried out in accordance with Order 5.9 hereof;

7.5 to the wife, so much of the sum of $380,600 as remains unpaid to the wife pursuant to Order 2, together with interest on that unpaid sum, calculated from the expiration of 30 days after the date of these orders at the rate prescribed under the Family Law Rules 2004;

7.6 an amount to be calculated by the Parties accountant as to the CGT that the wife will be required to pay on sale of the M property;

7.7 the balance then remaining to the Husband.

That in the event that Orders 5 to 7 come into operation and there is a shortfall in compliance with Order 7.5 hereof after payment of items referred to in Order 7.1 to 7.4 inclusive then the parties shall do all acts and things and list for sale and sell the E property and to this extent Orders 5 to 7 shall apply mutatis mutandis in respect of that sale.

Transfer of Motor Vehicle

Within 30 days from the date of the making of these Orders the husband do all such acts and things and execute all documents necessary to transfer to the wife all his right, title and interest in the Mitsubishi Challenger motor vehicle registration number ….

Possession denotes ownership

10.

That the husband be declared the sole and legal beneficial owner of:

10.1 The husband's interest in the Company, Elder Holdings Pty Ltd;

10.2 The husband's interest in Elder Family Trust;

10.3 The husband's savings;

10.4 The MISA secured over the B property ( a/c no: …)

10.5 The husband's Hilux motor vehicle; and

10.6 all items of personal and real property in the Husband's possession or of which the husband is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

11.

The wife be declared the sole and legal beneficial owner of:

11.1 Her Mitsubishis Challenger motor vehicle;

11.2 Her savings;

11.3 Her jewellery; and

11.4 all items of personal and real property in the wife's possession or of which the wife is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

Superannuation

12.

That each of the husband and the wife retain, to the exclusion of the other, their respective superannuation interests.

Default

13.

That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these Orders a Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A(1) of the Family Law Act to execute such documents on behalf of such party.

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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