FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANTLEY & JACQUES (No.2) | [2014] FCCA 1201 |
| Catchwords: FAMILY LAW – Property – undefended hearing – justice and equity. |
| Legislation: Family Law Act 1975, ss.90SF, 90SM |
| Norbis & Norbis (1986) FLC 91-712 Fearne & Fearne(No.2) [2012] FMCAfam 917 |
| Applicant: | MS GRANTLEY |
| Respondent: | MR JACQUES |
| File Number: | BRC 9586 of 2012 |
| Judgment of: | Judge Purdon-Sully |
| Hearing date: | 30 April 2014 |
| Date of Last Submission: | 30 April 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 9 May 2014 |
REPRESENTATION
| Solicitors for the Applicant: | No appearance |
| Counsel for the Respondent: | Ms K Oakley |
| Solicitors for the Respondent: | Files Stibbe Lawyers |
ORDERS
That the net assets of the parties be divided twenty five percent (25%) to the Applicant and seventy five percent (75%) to the Respondent.
That in order to effect the division of the assets as prescribed in Order 1 hereof, the Applicant retain the following assets and the Respondent pay to the Applicant the sum of $93,521.00 (“the payment”) within sixty (60) days of the date of these Orders:
| (a) | 1996 Ford Laser motor vehicle | $3,000 |
| (b) | Bank accounts | $327 |
| (c) | Household contents | $1,000 |
| (d) | Superannuation | $1,621 |
| (e) | The payment from Respondent | $93,521 |
| TOTAL | $99,469 |
That the Respondent retain the following assets and liabilities:
| (a) | Former matrimonial home | $375,000 |
| (b) | Bank accounts | $639 |
| (c) | 1996 Excel Sprint motor vehicle | $1,400 |
| (d) | 1993 Ford Falcon motor vehicle | $1,300 |
| (e) | Household contents | $5,000 |
| (f) | [A] superannuation | $6,999 |
| (g) | [S] superannuation | $1,590 |
| (h) | The payment to the Applicant | ($93,521) |
| TOTAL | $298,407 |
That in order to facilitate the payment as referred to in Order 2 hereof, the Respondent be at liberty to obtain finance necessary to effect a division of the net assets as outlined above within sixty (60) days from the date of these orders. If the Respondent is able to obtain finance then contemporaneously with the payment as referred to in Order 2 the parties shall do all things to facilitate a transfer of the property situated at Property S, [S] (“the [S] property”) from the joint names of the parties to the name of the Respondent absolutely, subject to any mortgage that may be necessary such transfer to be at the cost of the Respondent.
That in the event the Respondent is not able to obtain finance necessary to facilitate an adjustment of the assets of the parties as ordered, then the [S] property be sold by private treaty on the following terms:
(a)That both parties be at liberty to list the property with up to two (2) agents as they may choose, for the property to be listed for…
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- AGLC
- Grantley and Jacques (No.2) [2014] FCCA 1201
- Case
- [2014] FCCA 1201
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the specific assets and liabilities to be allocated to each party and the method by which the net assets would be divided. This involved calculating the value of various assets, including real estate, vehicles, bank accounts, and superannuation, and then formulating orders to achieve the desired percentage split.
Purdon-Sully J ordered that the net assets be divided such that the Applicant received 25% and the Respondent received 75%. To achieve this division, the Applicant was to retain certain specified assets, and the Respondent was ordered to pay a sum of $93,521 to the Applicant within sixty days. The Respondent was to retain the former matrimonial home and other listed assets and liabilities, with the payment to the Applicant being factored into his total allocation. The orders further detailed a mechanism for the transfer of the [S] property, including provisions for obtaining finance, sale by private treaty, or sale by public auction if necessary, with specific terms and timelines for each scenario. The proceeds from any sale of the [S] property were to be applied towards sale expenses and then distributed to achieve the overall asset division. Until the property was sold, the Respondent was to have sole possession and be responsible for its maintenance, rates, and insurance. Finally, each party was to retain the chattels and personal property in their possession, and both parties were granted liberty to apply to the court regarding the implementation of these orders.
Orders
Orders of the court
1.
That the net assets of the parties be divided twenty five percent (25%) to the Applicant and seventy five percent (75%) to the Respondent.
2.
That in order to effect the division of the assets as prescribed in Order 1 hereof, the Applicant retain the following assets and the Respondent pay to the Applicant the sum of $93,521.00 (“the payment”) within sixty (60) days of the date of these Orders:
(a)
1996 Ford Laser motor vehicle
$3,000
(b)
Bank accounts
$327
(c)
Household contents
$1,000
(d)
Superannuation
$1,621
(e)
The payment from Respondent
$93,521
TOTAL
$99,469
3.
That the Respondent retain the following assets and liabilities:
(a)
Former matrimonial home
$375,000
(b)
Bank accounts
$639
(c)
1996 Excel Sprint motor vehicle
$1,400
(d)
1993 Ford Falcon motor vehicle
$1,300
(e)
Household contents
$5,000
(f)
[A] superannuation
$6,999
(g)
[S] superannuation
$1,590
(h)
The payment to the Applicant
($93,521)
TOTAL
$298,407
4.
That in order to facilitate the payment as referred to in Order 2 hereof, the Respondent be at liberty to obtain finance necessary to effect a division of the net assets as outlined above within sixty (60) days from the date of these orders. If the Respondent is able to obtain finance then contemporaneously with the payment as referred to in Order 2 the parties shall do all things to facilitate a transfer of the property situated at Property S, [S] (“the [S] property”) from the joint names of the parties to the name of the Respondent absolutely, subject to any mortgage that may be necessary such transfer to be at the cost of the Respondent.
5.
That in the event the Respondent is not able to obtain finance necessary to facilitate an adjustment of the assets of the parties as ordered, then the [S] property be sold by private treaty on the following terms:
(a) That both parties be at liberty to list the property with up to two (2) agents as they may choose, for the property to be listed for sale at the price as recommended by the agent concerned; and
(b) That both parties sign all necessary documents to list the property for sale within seven (7) days of them receiving such documents, and return same to the agent concerned.
6.
That if the [S] property is not subject to an unconditional contract for sale within the period of ninety (90) days from the date of listing, that property be sold by public auction on the following terms:
(a) The Respondent first be at liberty to nominate an agent to sell the property by public auction, and that the auction occur within the period of a further thirty (30) days;
(b) All expenses for advertising, the auctioneer and other related disbursements be paid equally by the parties on demand from the agent concerned;
(c) If, upon the first contract not being successful, the Applicant is then at liberty to nominate another agent of her choosing (but being an agent whom she had originally selected to list the property to private treaty) to conduct a subsequent auction, within the period of a further thirty (30) days;
(d) Thereafter, there shall continue to be auctions held for the sale of the property until the property is sold, with the Respondent and the Applicant nominating an agent of their choice for the further auction, alternately;
(e) The parties shall accept all reasonable recommendations of the listing agents and the auctioneers engaged for the sale of the property in terms of the proposed listing price and for the purposes of an auction including the proposed reserve.
7.
That upon the sale of the [S] property proceeds of sale shall be applied as follows:
(a) To the payment of any sales commissions;
(b) The payment of the legal expenses of the sale (and that [omitted] Solicitors be hereby agreed to act on the sale);
(c) The balance be paid nominally to the pool of assets for distribution as otherwise ordered or agreed such that from the net proceeds of sale the Applicant receive an overall division representing 25% of the net assets inclusive of the property listed in Orders 2 (a) to (d) and the Respondent to receive an overall division representing 75% of the net assets inclusive of the property listed in Orders 3 (b) to (g).
8.
That until such time as the [S] property is sold, the Respondent be responsible for the maintenance of the property and the payment of rates and insurance.
9.
That the Respondent be entitled to the sole possession of the [S] property, as against the Applicant, until such time as the property is sold.
10.
That the Applicant, as against the Respondent, be entitled to retain all chattels and personal property in her possession as at the date of these Orders.
11.
That the Respondent, as against the Applicant, be entitled to retain all chattels and personal property in his possession as at the date of these Orders.
12.
That each party have liberty to apply on the giving of seven (7) days’ notice to the other with respect to the implementation of these Orders.
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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