Granger and Granger - [2018] FCCA 51

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRANGER & GRANGER

[2018] FCCA 51

Catchwords:
FAMILY LAW – Property – 40 year marriage – Dispute about the value of a rural property – where the husband wishes to retain the property – where the property is not easy to value but where the court has a duty to determine its value – where the wife inherited $700,000.00 eighteen months before the marriage ended – where the wife argues that her inheritance should be quarantined – where this would lead to insufficient recognition of the husband’s contributions during the marriage including receipt of an inheritance which was lost due to a failed investment - global approach to the assessment of contributions adopted – where the s.75(2) matters favour the husband slightly because the wife is still employed and accruing superannuation but where the wife is past normal retirement age – no adjustment for s.75(2) matters.

Legislation:

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

Cases cited:

Aleksovski & Aleksovski (1996) FLC 92-705
Bonnici & Bonnici (1992) FLC 92-272
Browne & Green (1999) 25 Fam LR 482

Commonwealth v Milledge (1953) 90 CLR 157
Kowaliw & Kowaliw (1981) FLC 91-091

Norbis & Norbis (1986) FLC 91-712
Stanford & Stanford (2012) FLC 93-495

Applicant:

MS GRANGER

Respondent:

MR GRANGER

File Number:

NCC 1472 of 2014

Judgment of:

Judge Terry

Hearing dates:

14 & 15 March 2017

Date of Last Submission:

15 March 2017

Delivered at:

Armidale

Delivered on:

12 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

APJ Law

Counsel for the Respondent:

Mr Edwards

Solicitors for the Respondent:

David Edwards & Associates

ORDERS

Within 90 days of the date hereof the husband shall pay to the wife the sum of $115,564.20.
Contemporaneously with the husband complying with Order (1) the wife shall sign all documents and do all acts and things required to transfer to the husband at the expense of the husband the whole of her right title and interest in the property known as “Property A”, Property A, Folio Identifier (omitted) (“Property A”).
If the husband fails to comply with Order (1) then the parties shall do all acts and things required to sell Property A and for that purpose:
(a)The property shall be listed for sale by private treaty with a real estate agent agreed between the parties and failing agreement as nominated by the president of the Real Estate Institute of NSW.
(b)The listing price of the property shall be as agreed between the parties and failing agreement as nominated by the agent.
(c)The sale price of the property shall be as agreed between the parties and failing agreement as nominated by the agent.
(d)The parties shall co-operate in every way with the agent in relation to the marketing of the property for sale including making the keys readily available and allowing inspection of the property at all times reasonably requested by the agent.
(e)Upon agreement being reached for sale of the property the parties shall execute…

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 Granger and Granger

Details

AGLC: Granger and Granger [2018] FCCA 51
Case: [2018] FCCA 51
Decision Date: 12 January 2018

CaseChat Overview and Summary

In the matter of *Granger and Granger*, Judge Terry of the Federal Circuit Court of Australia was required to determine the property settlement between a husband and wife. The dispute concerned the division of assets and liabilities, including a property referred to as "Property A" and various vehicles, plant, machinery, fertiliser, stock, and household contents.

The court was tasked with determining how the parties' assets should be divided, specifically addressing the ownership and disposition of Property A, and the allocation of the proceeds from its potential sale. Further issues included the ownership of specific vehicles and other tangible assets, as well as the mechanism for enforcing the court's orders should either party fail to comply with their obligations.

Judge Terry ordered that the husband pay a specific sum to the wife within 90 days, contingent upon which the wife would transfer her interest in Property A to the husband. Should the husband fail to make this payment, the property was to be sold by private treaty, with the proceeds to be applied first to sale costs, and then distributed with 60% less a specified amount to the wife and 40% plus that amount to the husband. The court also declared the wife the exclusive owner of certain vehicles and the husband the exclusive owner of plant, machinery, fertiliser, stock, and household contents on Property A, with each party otherwise retaining assets in their possession. To ensure compliance, the Registrar of the Newcastle Registry was appointed under section 106A of the *Family Law Act 1975* to execute documents on behalf of a party who refused or neglected to do so within 14 days of a written request.

Orders

Orders of the court

Within 90 days of the date hereof the husband shall pay to the wife the sum of $115,564.20.

Contemporaneously with the husband complying with Order (1) the wife shall sign all documents and do all acts and things required to transfer to the husband at the expense of the husband the whole of her right title and interest in the property known as “Property A”, Property A, Folio Identifier (omitted) (“Property A”).

If the husband fails to comply with Order (1) then the parties shall do all acts and things required to sell Property A and for that purpose:

(a) The property shall be listed for sale by private treaty with a real estate agent agreed between the parties and failing agreement as nominated by the president of the Real Estate Institute of NSW.

(b) The listing price of the property shall be as agreed between the parties and failing agreement as nominated by the agent.

(c) The sale price of the property shall be as agreed between the parties and failing agreement as nominated by the agent.

(d) The parties shall co-operate in every way with the agent in relation to the marketing of the property for sale including making the keys readily available and allowing inspection of the property at all times reasonably requested by the agent.

(e) Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.

The proceeds of sale shall be utilised as follows:

(a) To pay the costs, commissions and expenses of sale including any rates adjustments.

(b) To pay the balance as to 60 % less $241,435.80 to the wife and 40% plus $241,435.80 to husband.

The wife is declared the owner to the exclusion of the husband of the (vehicle omitted) and the Mitsubishi (omitted).

The husband is declared the owner to the exclusion of the wife of all plant, machinery, fertiliser, stock and household contents located on or connected with Property A.

Each party is otherwise declared the owner of all assets in their possession or under their control.

If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court is appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

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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