Goyle & Goldstein

Case [2011] FMCAfam 390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOYLE & GOLDSTEIN [2011] FMCAfam 390

FAMILY LAW – Property – de facto property application – where respondent failed to comply with directions for final hearing – contributions – s.90SF(3) considerations – adjustment in favour of the respondent.

FAMILY LAW – Costs – application for costs – whether respondent wholly unsuccessful – whether an amount should be held back to cover a prospective costs order.
Family Law Act 1975 (Cth), ss.4AA, 79, 90SB, 90SF, 90SK, 90SM, 106A, 117
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355
Applicant: MS GOYLE
Respondent: MR GOLDSTEIN
File Number: CAC 1761 of 2009
Judgment of: Scarlett FM
Hearing date: 28 April 2011
Date of Last Submission: 28 April 2011
Delivered at: Sydney
Delivered on: 4 May 2011

REPRESENTATION

Counsel for the Applicant: Mr Jackson
Solicitors for the Applicant: Kennedy & Cooke Lawyers
The Respondent: In person

ORDERS

  1. Within fourteen (14) days of the date of these Orders, the applicant and the respondent are to join in and do all things necessary including the signing of all necessary documents so as to cause the property known as [Property L] [Q] in the State of New South Wales to be sold.

  2. For the purposes of Order (1) above:

    (a)The parties must list the said property at [Q] for sale by private treaty within fourteen (14) days;

    (b)The applicant is to determine with which real estate agent or agents the property at [Q] is to be listed;

    (c)The applicant is to set the listing price for the said property at [Q];

    (d)In the event that the property at [Q] has not been sold on or before a date two (2) months after the date of these Orders then the parties are to procure a sale by public auction upon the following terms:

    (i)The auctioneer is to be appointed by the applicant;

    (ii)The auction is to take place within five (5) weeks after the deadline for the sale of the property by private treaty; and

    (iii)The reserve price is to be determined by the auctioneer in consultation with the parties.

  3. Upon the sale of the property at [Q], the proceeds of sale are to be applied in the following order of priority:

    (a)All outstanding legal costs owed by the parties including legal costs on the sale;

    (b)All real estate agent commissions and fees relating to the sale;

    (c)All outstanding council and water rates and maintenance levies associated with the property;

    (d)The implementation of a discharge of the mortgage encumbering the property;

    (e)As to 50% of the balance thereof to the applicant; and

    (f)The balance thereof to the respondent.

  4. Pending the sale of the property, the respondent is to be responsible for the payment of:

    (a)Any mortgage payments charged to the property as and when they become due for payment on a periodic basis; and

    (b)All rates, charges, maintenance costs and any other outgoings in relation…

Details
AGLC
Goyle & Goldstein [2011] FMCAfam 390
Case
[2011] FMCAfam 390
Decision Date

CaseChat Overview and Summary

In the case of Goyle & Goldstein, the parties were involved in a de facto relationship and were seeking a resolution of their property and financial matters under the Family Law Act 1975. The court was tasked with making orders regarding the distribution of property and liabilities between the parties, as well as determining the allocation of costs. The respondent had failed to comply with the court's directions for the final hearing, which led to an adjustment in their favour in the distribution of the property.

The court considered the contributions made by each party during the relationship, as well as other factors under s.90SF(3) of the Family Law Act 1975. Given the respondent's failure to comply with the court's directions, the court made an adjustment in their favour, resulting in a more equitable distribution of the property. The court also considered the costs associated with the proceedings, and decided not to hold back any amount to cover a prospective costs order against the respondent, as they were not wholly unsuccessful in the case.

The court ordered the sale of the property, with specific instructions on the listing, sale process, and distribution of the proceeds. The respondent was required to make mortgage and other payments during the pendency of the sale, and failure to do so would result in a deduction from their share of the net proceeds. The court also ordered the transfer of specific vehicles and shares in a company, as well as the assumption of certain liabilities by the parties.

In summary, the court made orders for the sale of the property, transfer of specific assets, and assumption of liabilities by the parties, with an adjustment in favour of the respondent due to their failure to comply with the court's directions. The court also considered the costs associated with the proceedings and decided not to hold back any amount to cover a prospective costs order against the respondent.

Orders

Orders of the court

1.

Within fourteen (14) days of the date of these Orders, the applicant and the respondent are to join in and do all things necessary including the signing of all necessary documents so as to cause the property known as [Property L] [Q] in the State of New South Wales to be sold.

2.

For the purposes of Order (1) above:

(a) The parties must list the said property at [Q] for sale by private treaty within fourteen (14) days;

(b) The applicant is to determine with which real estate agent or agents the property at [Q] is to be listed;

(c) The applicant is to set the listing price for the said property at [Q];

(d) In the event that the property at [Q] has not been sold on or before a date two (2) months after the date of these Orders then the parties are to procure a sale by public auction upon the following terms:

(i) The auctioneer is to be appointed by the applicant;

(ii) The auction is to take place within five (5) weeks after the deadline for the sale of the property by private treaty; and

(iii) The reserve price is to be determined by the auctioneer in consultation with the parties.

3.

Upon the sale of the property at [Q], the proceeds of sale are to be applied in the following order of priority:

(a) All outstanding legal costs owed by the parties including legal costs on the sale;

(b) All real estate agent commissions and fees relating to the sale;

(c) All outstanding council and water rates and maintenance levies associated with the property;

(d) The implementation of a discharge of the mortgage encumbering the property;

(e) As to 50% of the balance thereof to the applicant; and

(f) The balance thereof to the respondent.

4.

Pending the sale of the property, the respondent is to be responsible for the payment of:

(a) Any mortgage payments charged to the property as and when they become due for payment on a periodic basis; and

(b) All rates, charges, maintenance costs and any other outgoings in relation to the property.

5.

In the event that:

(a) The respondent fails to make the required payments referred to in Order (4) above; and

(b) At the time of the completion of the sale of the property there are still amounts outstanding in relation to Order (4), then

The parties shall adjust the payments referred to in Orders (3)(e) and (f) by deducting from the amount of the net proceeds of sale payable to the respondent an amount equal to the amount unpaid by him as stated in Order (4) and that amount shall be paid to the applicant by way of an adjustment.

6.

The respondent must transfer to the applicant all of his right title and interest in the 1952 Chevrolet utility motor vehicle and the applicant shall be declared the sole owner of the said vehicle.

7.

The applicant is to transfer to the respondent all of her right title and interest in the 1966 Chevrolet Impala motor vehicle and the respondent shall be declared the sole owner of the said vehicle.

8.

Within fourteen (14) days of the date of these Orders the applicant must sign all documents and do all things necessary to resign from any office that she holds in the Company known as [G] Pty Ltd without any payment or remuneration and transfer any shares that she holds in [G] Pty Ltd to the respondent or his nominee.

9.

Subject to the applicant’s compliance with Order (8) above the respondent must indemnify the applicant in relation to all costs, expenses or claims associated with the company [G] Pty Ltd or any business conducted by it.

10.

Each party will otherwise retain as individual owners all assets as well as any superannuation entitlements in their respective names and possession.

11.

The respondent is to be solely responsible and indemnify the applicant for the loan from the ANZ Bank and for any loan secured on the Honda 350 quad bike.

12.

The parties are to be solely responsible and indemnify the other for all liabilities in their individual names.

13.

As provided by Section 106A of the Family Law Act 1975 if either party refuses or neglects to comply with any order or direction to execute a deed or instrument necessary to give effect to any of these orders then a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed or instrument in the name of the party to whom the order was made or the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

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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