Gately and Clegg

This matter concerned an application for property settlement between a husband and wife, heard by Judge Burchardt. The dispute revolved around the division of various assets, including two properties, Property W and Property M, and the shares in a company, (omitted) Pty Ltd, which held an interest in the Junourton property.

The court was required to determine the appropriate orders for the transfer and refinancing of Property W, the discharge of liabilities associated with it, and the husband's obligation to obtain finance to pay out the mortgage on Property M. Further issues included the transfer of the Junourton property to the husband, the allocation of responsibility for any capital gains tax arising from that transfer, and the indemnification of each party by the other in respect of retained assets. The court also needed to consider an alternative order for the sale of the Junourton property should the husband be unable to comply with the finance requirement for Property M.

Judge Burchardt ordered that the husband transfer his interest in Property W to the wife, who was then to refinance it and discharge all associated liabilities into her sole name. The wife was ordered to indemnify the husband for all assets she retained. The husband was directed to obtain finance to pay out the mortgage on Property M, and the wife was to ensure the transfer of (omitted) Pty Ltd's interest in the Junourton property to the husband. The husband was to be solely responsible for any capital gains tax arising from the Junourton property transfer. Each party was to be solely entitled to property in their possession unless otherwise specified. In the event the husband could not obtain the necessary finance for Property M, the Junourton property was to be sold, with proceeds applied first to sale costs, then to discharge the Property M mortgage, then to capital gains tax, and the balance to the husband. Liberty to apply was granted regarding the terms of any sale.