EUFROSIN & EUFROSIN - [2013] FamCA 311

FAMILY COURT OF AUSTRALIA

EUFROSIN & EUFROSIN

[2013] FamCA 311

FAMILY LAW – PROPERTY – adjustment of property interests between the parties – gambling win after separation

Family Law Act 1975 (Cth) ss 75(2), 79

Stanford v Stanford C20127 HCA SZ
In the Marriage of Norbis (1986) 10 FamLR 819
In the Marriage of Zyk (1995) 19 FamLR 797
Anastasio & Anastasio [1981] FLC 91-093
In the Marriage of Farmer & Bramley (2000) 27 FamLR 316
Townsend & Townsend (1995) FLC 92-569
Chorn & Hopkins (2004) FLC 93-204
Mayne & Mayne (2011) FamCAFC 192
S v AG & MR [2011] EWHC 2637
Kowaliw & Kowaliw (1981) FLC 91-092

APPLICANT:

Ms Eufrosin

RESPONDENT:

Mr Eufrosin

FILE NUMBER:

SYC

2559

2009

DATE DELIVERED:

3 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

26, 27 & 28 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grieve QC, Ms Messner

SOLICITOR FOR THE APPLICANT:

Athena Touriki Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC, Mr Todd

SOLICITOR FOR THE RESPONDENT:

B Hayward & Co

Orders

That both parties do all things and execute all documents necessary to effect the transfer to the wife free from encumbrances all of the husband’s right, title and interest in the property situate at and known as … B Street, Suburb C in the State of New South Wales.
That both parties do all things and execute all documents necessary to effect the transfer to the wife free from encumbrances all of the husband’s right, title to and interest in the property situation at and known as … D Street, Suburb E in the State of New South Wales.
That both parties do all things and execute all documents necessary to:
3.1transfer all of the wife’s right, title and interest as a shareholder in Eufrosin Pty Limited to the husband
3.2effect the wife’s resignation as a director of Eufrosin Pty Limited
3.3close all bank accounts, operating accounts or other financial arrangements between the parties, in which they have been associated, either individually or as a business or as a company.
That both parties do all things and execute all documents required to effect the transfer to the husband of the whole of the wife’s right, title to and interest in the debt owed by Eufrosin Pty Limited to the husband and wife jointly.
That contemporaneously with compliance with orders 1, 2, 3 and 4 the husband do all things necessary to discharge the loans owed to the National Australia Bank so as to release the securities which the bank holds over the properties at Suburb C and Suburb E and to pay out the debts of the parties’ business, including the following liabilities:
5.1the debt of Eufrosin Pty Limited – NAB business loan account …75
5.2the debt of Eufrosin Pty Limited – NAB business option combination account No …78
5.3the debt of the NAB Flexi Account …64
5.4the debt owed on NAB cheque account …29.
That, contemporaneously with compliance with the balance…

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.

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Details

AGLC: EUFROSIN & EUFROSIN [2013] FamCA 311
Case: [2013] FamCA 311
Decision Date: 3 May 2013

CaseChat Overview and Summary

In *Eufrosin & Eufrosin*, Stevenson J determined property settlement orders between the parties. The dispute concerned the division of various assets, including real estate, shares in a company, and business debts, following the breakdown of the marriage.

The court was required to consider the application of sections 75(2) and 79 of the *Family Law Act 1975* (Cth) to determine how the parties' property should be divided. This involved assessing the contributions of each party to the acquisition, conservation, and improvement of the property, as well as considering future needs and other relevant circumstances.

Stevenson J ordered the transfer of two properties to the wife, free from encumbrances. In return, the wife was to transfer her shares in Eufrosin Pty Limited to the husband and resign as a director. The husband was to discharge various business loans and liabilities associated with Eufrosin Pty Limited, using the properties transferred to the wife as security. Additionally, the wife was ordered to pay a sum of $334,709 to the husband. Each party was declared the sole owner of other property in their possession, and each was to indemnify the other against any liabilities related to the property they received.

Orders

Orders of the court

That both parties do all things and execute all documents necessary to effect the transfer to the wife free from encumbrances all of the husband’s right, title and interest in the property situate at and known as … B Street, Suburb C in the State of New South Wales.

That both parties do all things and execute all documents necessary to effect the transfer to the wife free from encumbrances all of the husband’s right, title to and interest in the property situation at and known as … D Street, Suburb E in the State of New South Wales.

That both parties do all things and execute all documents necessary to:

3.1 transfer all of the wife’s right, title and interest as a shareholder in Eufrosin Pty Limited to the husband

3.2 effect the wife’s resignation as a director of Eufrosin Pty Limited

3.3 close all bank accounts, operating accounts or other financial arrangements between the parties, in which they have been associated, either individually or as a business or as a company.

That both parties do all things and execute all documents required to effect the transfer to the husband of the whole of the wife’s right, title to and interest in the debt owed by Eufrosin Pty Limited to the husband and wife jointly.

That contemporaneously with compliance with orders 1, 2, 3 and 4 the husband do all things necessary to discharge the loans owed to the National Australia Bank so as to release the securities which the bank holds over the properties at Suburb C and Suburb E and to pay out the debts of the parties’ business, including the following liabilities:

5.1 the debt of Eufrosin Pty Limited – NAB business loan account …75

5.2 the debt of Eufrosin Pty Limited – NAB business option combination account No …78

5.3 the debt of the NAB Flexi Account …64

5.4 the debt owed on NAB cheque account …29.

That, contemporaneously with compliance with the balance of these orders, the wife pay to the husband the sum of $334,709.

That each of the parties is declared to be the sole legal and beneficial owners of all other property not otherwise dealt with in these orders which is presently in his and her respective possession or control.

That each party is solely liable for and will indemnify the other against any liability encumbering any item of property which that party takes pursuant to these orders, including but not limited to company tax or capital gains tax.

That all material produced on subpoena be returned.

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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