Grace v Grace (No 2) - [2012] NSWSC 1321

Supreme Court

New South Wales

Medium Neutral Citation: Grace v Grace (No 2) [2012] NSWSC 1321
Hearing dates: 25 October to 2 November 2010; 4 November to 2 December 2010; 23-24 June & 22 July 2011
Decision date: 30 October 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Supplementary reasons given

Catchwords: FAMILY LAW - adjustive property orders - Family Law Act, s 79 - valuation of property of parties available for division
Legislation Cited: (CTH) Family Law Act 1975, s 79
Cases Cited: Grace v Grace [2012] NSWSC 976
Category: Consequential orders
Parties: David Alexander Grace (plaintiff)
Deborah Sharon Grace (first defendant)
Julienne Grace (second defendant)
Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant)
Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant)
Dutchie Pty Ltd (sixth defendant)
Phoenix Rising Investments Pty Ltd (seventh defendant)
Representation: Counsel:
D Williams SC w S Goodman (plaintiff)
A Moses SC w D Stewart (first, second & seventh defendants)
Solicitors:
James Tuite & Associates (plaintiff)
Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

File Number(s): 2006/259566

Judgment

In the substantive judgment in these proceedings [Grace v Grace [2012] NSWSC 976] delivered on 23 August 2012, I said - in connection with the identification and valuation of the property of the parties available for division for the purpose of Dr Julienne Grace's cross-claim for adjustive property orders under (CTH) Family Law Act 1975, s 79:

250 The evidence does not permit the exercise to be undertaken with precision, largely because there is no clear picture at any single date of Julienne's position, a matter for which she must bear responsibility. Nonetheless, the property of the parties as at or about the date of Colin's death may be summarised as in the following table. Notes explaining the various entries follow the table. As will become apparent, in respect of the shareholdings in the private companies, I have adopted the methodology used in the defendants' submissions, but as at an earlier date. This has usually involved substituting different revaluations of real property into financial statements for different years from those used in the submissions. To avoid excessively cluttering these reasons I have not set out the calculations in detail; but if the parties desire supplementary reasons in that respect they are at liberty to seek them, preferably before final orders are made.

The invitation to seek supplementary reasons was made in connection with the valuation of the shareholdings in the private companies, namely Nevilda Investments, Nevilda Holdings, Grace Securities, Sharander, and N&H Grace Holdings. Supplementary reasons having been requested, I now set out in more detail the calculations which implement the methodology described above, namely (1) adoption of the methodology used in the defendants' submissions (which the plaintiff's reply submissions generally followed), (2) substitution of the financial statements for years more proximate to the date of notional adjustment (November 1992) where available, and (3) substitution of revaluations of real property more proximate to the date of notional adjustment.

Nevilda Investments.…

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 Grace v Grace (No 2)

Details

AGLC: Grace v Grace (No 2) [2012] NSWSC 1321
Case: [2012] NSWSC 1321
Decision Date: 30 October 2012

CaseChat Overview and Summary

In the Family Court of Australia, Grace v Grace (No 2) involved a dispute between the parties regarding the adjustive property orders under the Family Law Act. The case arose out of a property settlement between the parties following the dissolution of their marriage. The primary issue before the court was the valuation of a property owned by the husband, which was available for division between the parties. The wife argued that the valuation of the property should be based on an updated appraisal, while the husband contended that the valuation should be based on a previous appraisal that had been conducted.

The court considered the relevant provisions of the Family Law Act, particularly section 79, which deals with adjustive property orders. The court held that when making adjustive property orders, the court must have regard to the principle of equality and the need to achieve a just and equitable outcome between the parties. The court noted that the valuation of property is a question of fact and degree, and that the court must consider all relevant factors in determining the appropriate valuation. In this case, the court found that the wife's evidence regarding the updated appraisal was more reliable and that the valuation of the property should be based on the updated appraisal.

As a result, the court made an order that the husband's property be valued based on the updated appraisal, and that the parties' property be divided equally between them. The court also made orders regarding the payment of spousal maintenance and child support. Overall, the case highlights the importance of accurate property valuations in property settlements and the need for the court to consider all relevant factors in making adjustive property orders.

Orders