Garwin & Garwin - [2012] FamCA 296

FAMILY COURT OF AUSTRALIA

GARWIN & GARWIN

[2012] FamCA 296

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Where the husband made the greater financial contribution – Where the wife made the greater homemaker contributions – Where the husband’s contributions overall exceeded those of the wife – Adjustments – Where an adjustment is warranted in favour of the wife – Just and equitable.

Family Law Act 1975 (Cth) ss 75 & 79.

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
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 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

APPLICANT:

Ms Garwin

RESPONDENT:

Mr Garwin

FILE NUMBER:

SYC

4531

2009

DATE DELIVERED:

4 April 2012

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Loughnan

PLACE HEARD: Sydney

HEARING DATE:

21 February 2012

REPRESENTATION

Counsel FOR THE APPLICANT Husband	Mr J. Millar
SOLICITOR FOR THE APPLICANT:	Pearson Family Lawyers

Counsel FOR THE respondent

MOTHER:

Mr G. Gould

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

Within 30 days from the date of the making of these Orders and contemporaneously:
a)the wife shall do all acts and things and sign all documents necessary to:
i)resign all directorships and/or positions and/or offices in L Pty Limited; and
ii)transfer to the husband the whole of her right title and interest in the property known as and situated at X Avenue, M in the state of New South Wales being folio identifier Lot … (“the X Ave property”).
b)the husband shall indemnify the wife in respect of any liability she has, or may have, in relation to her having been a director or shareholder of L Pty Limited including liability for any debt to the company, any breach of duty, any taxation liability arising from any dividend or deemed dividend paid or payable to the wife or in connection with her having been a director of the company; and
c)the husband pay to the wife or as she may direct in writing the sum of $4,444,377.
If the husband does not pay to the wife the sum of $4,444,377 in accordance with order 1 then the parties are to forthwith upon that default, do all acts and things and sign all necessary documents to effect a sale of the X Ave property including but not limited to:
a)Placing the property on the market for sale by way of public auction with an agreed real estate agent (“the agent”) and failing agreement with an agent as nominated by the President, or his nominee, of the Real Estate Institute of New South Wales at the cost of the husband.
b)Executing all documents…

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 Garwin & Garwin

Details

AGLC: Garwin & Garwin [2012] FamCA 296
Case: [2012] FamCA 296
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the matter of *Garwin & Garwin*, Loughnan J made orders concerning the division of property and financial arrangements between a husband and wife. The dispute involved the wife's resignation from directorships and shareholdings in L Pty Limited, the transfer of her interest in a property located at X Avenue, M, New South Wales, and the husband's indemnification of the wife for any liabilities arising from her involvement with the company. The court also addressed the payment of a significant sum by the husband to the wife and the potential sale of the X Avenue property if payment was not made.

The court was required to determine the terms of the property settlement, including the specific actions to be taken by each party to effect the transfer of assets and the discharge of liabilities. Key issues included the valuation and division of the X Avenue property, the extent of the husband's indemnity to the wife regarding her company directorships and shareholdings, and the mechanism for payment and enforcement of the financial orders. The court also considered the management of a trust account held for the parties' children and the final disposition of all other property and debts not specifically addressed in the orders.

Loughnan J ordered that within 30 days, the wife was to resign from all positions in L Pty Limited and transfer her interest in the X Avenue property to the husband. Concurrently, the husband was to indemnify the wife against any liabilities related to her directorship or shareholding in the company and pay her the sum of $4,444,377. Should the husband fail to make this payment, the X Avenue property was to be sold by public auction, with the husband responsible for all sale costs. The proceeds of sale were to be applied first to sale costs and outstanding rates, then to reimburse the husband for sale expenses, and finally, the net proceeds were to be divided with 55.6% to the wife and the balance to the husband. The orders also stipulated that each party was solely entitled to other property in their possession and solely liable for their own debts, with provisions for the Registrar of the Family Court to execute documents in case of default.

Orders

Orders of the court

Within 30 days from the date of the making of these Orders and contemporaneously:

a) the wife shall do all acts and things and sign all documents necessary to:

i) resign all directorships and/or positions and/or offices in L Pty Limited; and

ii) transfer to the husband the whole of her right title and interest in the property known as and situated at X Avenue, M in the state of New South Wales being folio identifier Lot … (“the X Ave property”).

b) the husband shall indemnify the wife in respect of any liability she has, or may have, in relation to her having been a director or shareholder of L Pty Limited including liability for any debt to the company, any breach of duty, any taxation liability arising from any dividend or deemed dividend paid or payable to the wife or in connection with her having been a director of the company; and

c) the husband pay to the wife or as she may direct in writing the sum of $4,444,377.

If the husband does not pay to the wife the sum of $4,444,377 in accordance with order 1 then the parties are to forthwith upon that default, do all acts and things and sign all necessary documents to effect a sale of the X Ave property including but not limited to:

a) Placing the property on the market for sale by way of public auction with an agreed real estate agent (“the agent”) and failing agreement with an agent as nominated by the President, or his nominee, of the Real Estate Institute of New South Wales at the cost of the husband.

b) Executing all documents requested by the agent for the sale of the property.

c) The husband shall be responsible for all payments requested by the selling agent prior to the auction.

d) The reserve price for the auction shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by the agent.

e) In the event that the property does not sell at the first auction then the parties shall make all such arrangements and do all such acts and sign all such documents and the husband pay all moneys necessary to sell the property by public auction every four (4) months from the date of the first auction until the property is sold.

Upon completion of the sale of the property the parties are to cause the proceeds of the sale be applied as follows:

a) to pay all costs, commissions and expenses of the sale and to pay any council and water rates outstanding in respect of the real property;

b) to repay the husband any amounts paid by him pursuant to 2 a), c) or e) above;

c) to the wife, 55.6% of the net proceeds of sale; and

d) to the husband, the balance of those net proceeds.

By consent the parties shall forthwith do all things and sign all documents necessary to require both their signatures for any transactions on the trust account currently held by the wife on behalf of their children, J Garwin and A Garwin.

Other than as is specifically provided for in these Orders, the parties are solely entitled, to the exclusion of the other, to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these Orders.

Other than as is specifically provided for in these Orders the parties are solely liable for any debts and other liabilities, including taxation liabilities currently in their name.

Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 14 days of being requested to do so.

In default of any party doing all acts and things and executing all such documents to give effect to these Orders within 14 days of a written request to do so, then the Registrar of the Family Court of Australia at Sydney be appointed to execute all such documents in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such documents.

Leave is granted to the parties to restore the proceedings within 21 days of the date of these Orders or within such further time as the parties agree in writing, in respect of the wording of the orders, by giving at least 7 days written notice to the Associate to Justice Loughnan and to each other.

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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