HABERMAS & GOMEZ

The case of Habermas & Gomez involved a dispute between the parties concerning the division of their property. The proceedings were before Macmillan J of the Family Court of Australia. The court was required to make orders regarding the payment of a sum of money, the transfer and sale of properties, and the allocation of sale proceeds, as well as the payment of costs.

The central legal issues before the court were how to achieve a just and equitable division of the parties' assets, specifically addressing the payment of a significant sum by one party to the other, the disposition of two properties (one to be held on trust for sale and the other potentially sold to satisfy a shortfall), and the apportionment of capital gains tax arising from property sales. The court also needed to determine the payment of costs previously ordered.

Macmillan J ordered the respondent to pay the applicant a sum of $431,407 within 90 days, contemporaneously with the applicant withdrawing any caveats lodged against two properties. If the full payment was not made, the respondent was to transfer his interest in one of the properties to the applicant to be held on trust for sale, with the applicant having sole conduct of the sale. The proceeds of this sale were to be applied first to sale costs, then to discharge any mortgage or encumbrance, then to the applicant ($336,000 plus 40% of the remaining sale price less capital gains tax), and the balance to the respondent. The orders also detailed a mechanism for calculating and paying capital gains tax. In the event of a shortfall in the applicant's payment from the sale of the first property, the second property was to be sold, with proceeds applied to sale costs, encumbrances, and then to the applicant to satisfy the outstanding amount, adjusted by 40% of the difference between the sale price and a specified valuation, with the balance to the respondent. The respondent was also ordered to pay $7,400 for costs within 28 days, with a provision for these costs to be paid from sale proceeds if not paid by the due date. The court also made orders regarding the parties' sole entitlement to property in their possession, the severance of joint tenancies, and the dismissal of extant applications. A Registrar was empowered to sign documents on behalf of a defaulting party.