Grohl & Acland (No 2) - [2022] FedCFamC1F 259

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grohl & Acland (No 2) [2022] FedCFamC1F 259

File number(s): WOC 692 of 2016

Judgment of: RIETHMULLER J

Date of judgment: 21 April 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Orders to reflect previous Reasons for Judgment – No matters of principle

Legislation: Family Law Act 1975 (Cth)

Cases cited: Grohl & Acland [2022] FedCFamC1F 101

Division: Division 1 First Instance

Number of paragraphs: 12

Date of last submission/s: 11 April 2022

Place: Parramatta

Solicitor for the Applicant: Sydney Family Law Specialists

Solicitor for the First Respondent: S & R Lawyers

Solicitor for the Second Respondent: Litigant in person (did not participate)
ORDERS

WOC 692 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GROHL

Applicant

AND:
MR ACLAND

First Respondent

MS LIVINGSTONE

Second Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

21 APRIL 2022

THE COURT ORDERS THAT:
1.That within twenty-eight (28) days of the making of these orders the first respondent shall do all things and acts and sign all documents as is necessary to transfer, free from any mortgage, encumbrance or guarantee, the whole of his right, title and interest in the property described in Certificate of Title Folio Identifier … and known as V Street, Suburb B NSW (“the [Suburb B] property”) to the applicant, and for this purpose:
(a)Both the applicant and the first respondent shall do all things and acts and sign all documents as is necessary to discharge the mortgage to the Commonwealth Bank of Australia registered on title of the Suburb B property and it is noted that there is no money owing on such mortgage; and
(b)Both the applicant and the first respondent are hereby restrained from drawing upon the mortgage registered upon the Suburb B property or from causing same to increase, in any way, prior to the discharge of same and the transfer of the Suburb B property into the applicant’s sole name.

2.That within three (3) calendar months of the making of these orders the first respondent is to pay the amount of $4,148,194 (“the settlement sum”) to the applicant.

Default Provisions
Provision of Real Estate Agents by the first respondent
3.That in the event that the first respondent fails to comply with Order 2 above, then within seven (7) days of the first respondent’s non-compliance , the first respondent is to provide the name of three (3) Real Estate Agents to the solicitors for the applicant for the purposes of selling the property described in Certificate of Title Folio Identifier … and known as Property E, together with their draft Agency Agreement which sets out their commissions, fees and charges.
4.That within seven (7) days thereof, the applicant is to select one (1) Real Estate Agent from such proposed agents to be appointed (“the Agent”) for the purposes of selling Property E.
5.In the event the applicant fails to select a Real Estate Agent within the timeframe set out in…

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 Grohl & Acland (No 2)

Details

AGLC: Grohl & Acland (No 2) [2022] FedCFamC1F 259
Case: [2022] FedCFamC1F 259
Decision Date

CaseChat Overview and Summary

This case involved a property settlement application by the Applicant, Ms Grohl, against the First Respondent, Mr Acland, following the breakdown of their de facto relationship. The Court was required to determine the appropriate orders to reflect the reasons for judgment given on 16 March 2022, which provided for a 37.5 to 62.5 per cent split in favour of the First Respondent. The Court had to consider the parties' submissions on the draft minute of order and address any numerical errors or disagreements on the orders.

The Court considered the submissions made by the parties and found that the First Respondent's concerns about the timeframe for payment of the settlement sum and the provision for Capital Gains Tax (CGT) were not well-founded. The Court had previously considered these issues in its reasons for judgment and found the proposed timeframe and CGT provisions to be adequate. The First Respondent had ample time to prepare for the orders and had not provided any alternative proposals.

As a result, the Court made orders to give effect to the reasons for judgment, with some minor changes to the applicant's draft minute of order. The Court removed certain draft orders that were not discussed in the reasons, such as the costs of expert reports, and amended the order in which the proceeds of sale of a property would be distributed to reflect legal preferences for the payment of creditors and other costs. The Court also included additional orders to come into effect in the event of non-compliance by either party.

In summary, the Court decided to uphold the orders proposed in the applicant's draft minute of order, with some modifications, and rejected the First Respondent's objections to the timeframe for payment of the settlement sum and the provision for CGT. The Court emphasised that the parties should now comply with the orders and that any unresolved issues, such as costs, could be the subject of a separate costs application if appropriate.

Orders