Elgabri & Elgabri - [2009] FamCA 227

FAMILY COURT OF AUSTRALIA

ELGABRI & ELGABRI

[2009] FamCA 227

FAMILY LAW – PROPERTY SETTLEMENT – VALUE OF PROPERTY – Self managed superannuation fund – Dispute as to valuation of the superannuation fund to be resolved by appointment of an accountant and auditor to regularise the affairs of the superannuation fund – Dispute as to the valuation of the taxi plate owned by the superannuation fund – Expert opinion on the market value of the taxi plate was reliant upon information provided by the RTA in circumstances where the market evidence revealed something different – The Court ultimately relied upon the sales evidence of the market value of the taxi plate and made the deductions which the expert suggested should be made

FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Contributions to the date of separation broadly equal – The wife’s contribution based entitlement to the husband’s “windfall” inheritance received very late in the marriage found to be approximately 5 percent.

FAMILY LAW – PROPERTY SETTLEMENT – SECTION 75(2) – A 7.5 percent adjustment made in favour of the wife with respect to the husband’s inheritance and his minimally greater capacity for employment

FAMILY LAW – PROPERTY SETTLEMENT – JUST AND EQUITABLE – Despite the outcome that the orders leave the husband in a significantly better financial position than they leave the wife, that disparity is entirely referable to the magnitude of the husband’s inheritance

Family Law Act 1975 (Cth) Part VIII, s 75(2)

Pierce & Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844
Kardos v Sarbutt [2006] NSWCA 11
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705

APPLICANT:

Ms Elgabri

RESPONDENT:

Mr Elbagri

FILE NUMBER:

PAC

2007

DATE DELIVERED:

26 March 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

16 & 17 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Merkel

SOLICITOR FOR THE APPLICANT:

Griffin Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That within 90 days the parties do all such acts and things and execute all deeds documents instruments and writings as shall be necessary to transfer to the wife absolutely and beneficially the whole of the husband’s right title and interest in the property known as and situate at M NSW (“M property”) being the property described in Folio Identifier ….
That upon the transfer of M property to the wife, the wife indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings of whatsoever nature or kind.
That, in consideration of the transfer to the wife of the husband’s interest in M property, the wife within 90 days of the date of these orders pay to the husband the sum of $43 556.
That in the event of the wife failing to pay to the husband the said sum of $43 556 within 90 days of the date…

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 Elgabri & Elgabri

Details

AGLC: Elgabri & Elgabri [2009] FamCA 227
Case: [2009] FamCA 227
Decision Date: 26 March 2009

CaseChat Overview and Summary

In the matter of *Elgabri & Elgabri*, Coleman J of the Family Court of Australia considered a property settlement dispute between a husband and wife. The core of the disagreement involved the valuation of the parties' assets, particularly a self-managed superannuation fund and a taxi plate held within it. The court also had to determine the appropriate division of contributions and consider adjustments under section 75(2) of the *Family Law Act 1975* (Cth).

The legal issues before the court included the accurate valuation of the superannuation fund, which required the appointment of an accountant and auditor to regularise its affairs. A specific dispute arose regarding the valuation of a taxi plate owned by the superannuation fund, where expert opinion conflicted with market sales evidence. The court also needed to assess the parties' contributions to the marriage, including the wife's entitlement to a portion of the husband's late-received inheritance, and consider whether any adjustments were warranted under section 75(2) due to factors such as employment capacity.

Coleman J resolved the valuation dispute concerning the taxi plate by relying on market sales evidence, rather than the expert opinion which was based on information that did not reflect market realities. The court found the parties' contributions to the date of separation to be broadly equal, but awarded the wife approximately 5 percent of the husband's inheritance due to its late receipt during the marriage. A further 7.5 percent adjustment was made in favour of the wife, considering the inheritance and the husband's slightly greater employment capacity. Despite the husband being left in a significantly better financial position, the court found this disparity to be solely attributable to the magnitude of his inheritance, deeming the overall division just and equitable.

The court made detailed orders for the transfer of property, including the parties' interests in a property at M NSW and their respective superannuation funds. The orders provided for the transfer of the M property to the wife, with a payment to the husband, and outlined alternative arrangements for payment or sale of the property if the initial transfer did not occur. The Elgabri Superannuation Fund was to undergo an audit, with specific amounts to be paid to the wife's nominated superannuation fund and the remainder to be split between the parties' respective funds. The wife was to cease being a member and trustee of the superannuation fund upon compliance with these orders. Costs were reserved, with a timeline set for written submissions regarding any applications for costs.

Orders

Orders of the court

That within 90 days the parties do all such acts and things and execute all deeds documents instruments and writings as shall be necessary to transfer to the wife absolutely and beneficially the whole of the husband’s right title and interest in the property known as and situate at M NSW (“M property”) being the property described in Folio Identifier ….

That upon the transfer of M property to the wife, the wife indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings of whatsoever nature or kind.

That, in consideration of the transfer to the wife of the husband’s interest in M property, the wife within 90 days of the date of these orders pay to the husband the sum of $43 556.

That in the event of the wife failing to pay to the husband the said sum of $43 556 within 90 days of the date of these orders, the husband have the option within 30 days thereafter of paying to the wife the sum of $331 444, whereupon the wife shall transfer to the husband the whole of her right title and interest in M property and the husband shall indemnify the wife in the terms referred to in these orders.

That in the event of neither the wife nor the husband exercising the rights conferred upon them by these orders within 120 days of the date of these orders, the parties do all acts and things and execute all deeds documents instruments and writings necessary to cause M property to be sold at and for a price agreed in writing between the parties, and to cause the proceeds of sale after payment out of agents commission and selling expenses to be divided between them as tenants in common in shares of 88.4% to the wife and 11.6% to the husband.

That pursuant to s 90MT(1) of the Family Law Act 1975 (“the Act”) the parties as trustees of the Elgabri Superannuation Fund do all acts and things and execute all deeds documents instruments and writings necessary to cause the Elgabri Superannuation Fund ABN … (“the superannuation fund”) to make a splittable payment to an eligible superannuation fund nominated by the wife for that purpose the sum of $126 053 being the entitlement of the wife in the said superannuation fund together with any further monies as shall be payable to the wife pursuant to orders 7 and 8 hereof.

That the parties cause an accountant and auditor agreed upon by them for that purpose, of failing such agreement, nominated by the President of the Institute of Chartered Accountants, to expeditiously audit the Elgabri Superannuation Fund.

That pursuant to s 90MT(1) of the Act the parties as trustees of the Elgabri Superannuation Fund cause any monies over and above the sum of $47 000 which are found to be due to the Elgabri Superannuation Fund pursuant to Order 7 hereof to be paid, after deduction of any sums determined by the auditor of the fund to be appropriately deducted, to the superannuation funds nominated by the parties for that purpose as tenants in common in shares of 60 percent to the wife and 40 percent to the husband.

That, upon compliance with the preceding order, the parties do all such acts and things as shall be necessary to cause the wife to cease to be a member of the Elgabri Superannuation Fund and to resign as a trustee of the said fund.

10.

That, save to the extent provided by these orders, each party retain absolutely and beneficially all property real or personal possessed or having previously been received by each of them.

11.

That the costs of the proceedings be reserved.

12.

That written submissions in support of any application for the costs of the proceedings be filed and served within 28 days and that any submissions in response to such submissions be filed and served within 21 days thereafter.

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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