Elgin and Elgin - [2014] FamCA 10

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN

[2014] FamCA 10

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Superannuation – Value of property – Conflicting evidence – Date of valuation – Expert evidence.
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Family company – Family Trust – Just and equitable – Future needs – Long marriage – Where the parties have three adult children – Where the wife was the primary caregiver of the children – Where the husband was the primary income earner throughout the relationship.

Family Law Act 1975 (Cth) s 75(2)

Bulleen & Bulleen (2010) 43 Fam LR 489
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Elgin

RESPONDENT:

Mr Elgin

FILE NUMBER:

BRC

2909

2010

DATE DELIVERED:

17 January 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

18, 19 & 20 July 2012

10 October 2012 written submissions of both parties filed

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North of Senior Counsel and Mr Sweeny of Counsel

SOLICITOR FOR THE APPLICANT:

Glezer Lanteri Associates Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Hamwood of Counsel

SOLICITOR FOR THE RESPONDENT:

Reaburn Solicitors

Orders

That within forty-five (45) days of the date of these Orders the Husband pay to the Wife the sum of fifteen million, four hundred and thirty-two thousand, four hundred and fifty-seven dollars ($15,432,457).
That within forty-five (45) days of the date of these Orders the Husband transfer to the Wife, at the Wife’s expense, all of his right, title and interest in the property situate and known as Apartment A, C Street, Melbourne in the State of Victoria (hereinafter referred to as “C Street”).
That within forty-five (45) days of the date of these Orders the Husband transfer to the Wife, at the Wife’s expense, all of his right title and interest in the property situate at and known as Apartment D, E Street, Gold Coast, in the State of Queensland (hereinafter referred to as “Apartment D”).
That within forty-five (45) days of the date of these Orders the Husband, at the Wife’s expense, do all acts and things as are necessary in his capacity as a director of Elgin Finance Pty Ltd to transfer to the Wife of all that company’s interest in the property situate at and known as Apartment G, E Street, Gold Coast, in the State of Queensland (hereinafter referred to as “Apartment G”).
That upon the transfer of C Street, Apartment D and Apartment G to the Wife, the Wife indemnifies the Husband in respect of all outgoings past, present or future, associated with those properties.
That contemporaneously with the payment of the full amount of $15,432,457 to the Wife:
(a)The Wife shall, at the Husband’s expense, transfer to the Husband or his nominee all of her shareholdings in all those corporations set out in the Schedule to these Orders (hereinafter referred to as “the entities”);
(b)The Wife shall, at the Husband’s expense, sign all such documents so as…

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 Elgin and Elgin

Details

AGLC: Elgin and Elgin [2014] FamCA 10
Case: [2014] FamCA 10
Decision Date: 17 January 2014

CaseChat Overview and Summary

The case of *Elgin and Elgin* concerned a dispute between a husband and wife regarding the division of their matrimonial assets. The proceedings were heard by Forrest J.

The court was required to determine the appropriate orders for the division of property and the settlement of financial claims between the parties. This involved the transfer of various real estate properties, a significant monetary payment, and the division of shareholdings in several companies and entitlements under trusts.

Forrest J ordered the husband to pay the wife a sum of $15,432,457 and to transfer to her his interests in three specific properties: Apartment A, C Street, Melbourne; Apartment D, E Street, Gold Coast; and Apartment G, E Street, Gold Coast. The wife was to indemnify the husband for all outgoings associated with these properties. Contemporaneously with the payment, the wife was to transfer her shareholdings in specified entities to the husband and resign as an office holder. The husband was to indemnify the wife for liabilities arising from the orders, excluding those related to the transferred properties, and from her involvement in the entities or trusts. The husband was also restrained from attempting to recover monies from the wife or H Pty Ltd and was ordered to relinquish control of the J Elgin Family Trust to his son. Each party was to retain exclusive ownership of property and choses in action in their own name, save as otherwise provided.

Orders

Orders of the court

That within forty-five (45) days of the date of these Orders the Husband pay to the Wife the sum of fifteen million, four hundred and thirty-two thousand, four hundred and fifty-seven dollars ($15,432,457).

That within forty-five (45) days of the date of these Orders the Husband transfer to the Wife, at the Wife’s expense, all of his right, title and interest in the property situate and known as Apartment A, C Street, Melbourne in the State of Victoria (hereinafter referred to as “C Street”).

That within forty-five (45) days of the date of these Orders the Husband transfer to the Wife, at the Wife’s expense, all of his right title and interest in the property situate at and known as Apartment D, E Street, Gold Coast, in the State of Queensland (hereinafter referred to as “Apartment D”).

That within forty-five (45) days of the date of these Orders the Husband, at the Wife’s expense, do all acts and things as are necessary in his capacity as a director of Elgin Finance Pty Ltd to transfer to the Wife of all that company’s interest in the property situate at and known as Apartment G, E Street, Gold Coast, in the State of Queensland (hereinafter referred to as “Apartment G”).

That upon the transfer of C Street, Apartment D and Apartment G to the Wife, the Wife indemnifies the Husband in respect of all outgoings past, present or future, associated with those properties.

That contemporaneously with the payment of the full amount of $15,432,457 to the Wife:

(a) The Wife shall, at the Husband’s expense, transfer to the Husband or his nominee all of her shareholdings in all those corporations set out in the Schedule to these Orders (hereinafter referred to as “the entities”);

(b) The Wife shall, at the Husband’s expense, sign all such documents so as to transfer to the Husband all of her right, title and interest in the entities and resign as an office holder in all such entities;

(c) The Wife shall, at the Husband’s expense, transfer to the Husband and/or assign to the Husband at the Husband’s expense any entitlement she has in respect of the entities or under any trust of which the Husband or any of the entities is trustee including any loan account entitlements, thereby renouncing any entitlements to any loan account or beneficiary entitlement in any of those entities or under any of those trusts.

That the Husband indemnify the Wife in respect of all past, present and future liabilities arising as a result of the Orders herein (save for any liabilities associated with C Street, Apartment D and Apartment G), or from her involvement in the entities or in any trust of which he or any of the entities is trustee including any and all taxation liabilities.

That the Husband either personally or via his involvement in the entities, be restrained from attempting or causing or permitting any of the entities to attempt to recover from the Wife or H Pty Ltd any monies allegedly owing to the Husband or any of the entities including as trustee by the Wife or H Pty Ltd, and that the Husband hereafter indemnify the Wife and H Pty Ltd with respect to any such liability.

That within 30 days of the date of these Orders, if he has not yet done so, the Husband shall take all steps necessary to relinquish control of the J Elgin Family Trust in favour of his son, Mr J Elgin, or his son Mr J Elgin’s nominee.

10.

That save as expressly referred to herein each party shall hereafter be entitled to ownership of and enjoyment of, to the exclusion of the other, all real property in that party’s name, all and any chattels in that party’s possession and each and every chose in action to which that party is now entitled.

11.

That the hearing listed for 10.00 am on 17 February 2014 before his Honour Justice Forrest be vacated.

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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