Hadjidemetriou and Lescouriou - [2008] FamCA 222

FAMILY COURT OF AUSTRALIA

LESCOURIOU & HADJIDEMETRIOU

[2008] FamCA 222

FAMILY LAW – PROPERTY - Settlement in relation to marriage

Family Law Act 1975 (Cth)

Kowaliw & Kowaliw (1981) FLC91-092
C & C (2006) FLC 93-269
De Angelis & De Angelis (2003) FLC 93-133
Hall & Tudor (aka Hewitt & Tsonga) [2008] FamCAFC 8

APPLICANT:

MRS LESCOURIOU

RESPONDENT:

MR HADJIDEMETRIOU

FILE NUMBER:

MLF

1121

2006

DATE DELIVERED:

4 MARCH 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

14, 15, 19 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR JACKSON

SOLICITOR FOR THE APPLICANT:

ARCHER & SAPOUNTZIS

COUNSEL FOR THE RESPONDENT:

MR SERRA

SOLICITOR FOR THE RESPONDENT:

GPZ LEGAL

Orders

IT IS ORDERED

Capitalised Spousal Maintenance

This is an order to which s 77A of the Family Law Act 1975 applies.
The husband shall pay to the wife the sum of $75,750 by way of capitalised spousal maintenance, such sum to be paid on or before 5 May 2008 (“the date”).

Property

That the wife shall pay to the husband the sum of $142,600 (“the payment”) on or before the date.
That contemporaneous with the payment:
(a)The husband shall transfer to the wife at the expense of the wife his interest in the land at T in the State of Queensland;
(b)Each party shall at their own cost withdraw any caveats lodged by them or solicitors acting on their behalf over real property registered in the other party’s name or real property which is to be retained by the other party following these orders; and
(c)The wife shall indemnify and keep the husband indemnified in relation to any liabilities over the property at B in Melbourne (“the [B]”) registered in her sole name, the property T in the State of Queensland, and the property at R in the State of Victoria and the husband shall indemnify and keep the wife indemnified against any liability in relation to the property at D in the State of Victoria.
That in the event that the whole of the payment has not been made by the date then the wife shall sign all documents and do all things necessary to transfer to the husband the B property to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale shall be applied:
(a)First to pay all costs, commissions and expenses of the trust transfer and the sale;
(b)Secondly to discharge any mortgage or encumbrance affecting the B property;
(c)Thirdly to pay to the husband so much of the payment as is then outstanding together with interest thereon at the rate prescribed in the Family Law Rules; and
(d)Fourthly to pay the balance to the wife.
That pending the payment or completion of the sale:
(a)The wife shall have the sole right to occupy the B property and during such right of occupation the wife shall pay all out-goings in relation to the B property as they fall due and shall…

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.

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Details

Case: [2008] FamCA 222
Decision Date: 4 March 2008

CaseChat Overview and Summary

This matter concerned orders made by Dessau J in the Family Court of Australia, determining the financial and property settlement between the parties, Mr. Hadjidemetriou and Ms. Lescouriou. The dispute involved the division of various assets, including real estate and superannuation, and the provision of spousal maintenance.

The court was required to determine the appropriate orders for capitalised spousal maintenance and the division of property, including specific real estate interests. The orders also addressed the withdrawal of caveats, indemnities for liabilities associated with various properties, and the consequences of a failure to make a required payment by a specified date. Furthermore, the court considered the parties' entitlements to other property and superannuation benefits.

The court ordered the husband to pay the wife a sum of $75,750 by way of capitalised spousal maintenance. In relation to property, the wife was ordered to pay the husband $142,600. Contemporaneously with this payment, the husband was to transfer his interest in a Queensland property to the wife, and both parties were to withdraw any caveats lodged over each other's property. The wife was to indemnify the husband against liabilities concerning properties in Melbourne and Queensland, while the husband was to indemnify the wife for liabilities relating to a Victorian property. Provisions were also made for the wife's sole occupation of the Melbourne property pending payment, and for the sale of that property should the wife fail to make the full payment by the due date, with the proceeds to be applied first to sale costs, then to discharge any mortgage, then to satisfy any outstanding payment to the husband with interest, and finally the balance to the wife. Each party was to retain other property in their name and forgo claims to the other's superannuation.

Orders

Orders of the court

IT IS ORDERED

Capitalised Spousal Maintenance

This is an order to which s 77A of the Family Law Act 1975 applies.

The husband shall pay to the wife the sum of $75,750 by way of capitalised spousal maintenance, such sum to be paid on or before 5 May 2008 (“the date”).

Property

That the wife shall pay to the husband the sum of $142,600 (“the payment”) on or before the date.

That contemporaneous with the payment:

(a) The husband shall transfer to the wife at the expense of the wife his interest in the land at T in the State of Queensland;

(b) Each party shall at their own cost withdraw any caveats lodged by them or solicitors acting on their behalf over real property registered in the other party’s name or real property which is to be retained by the other party following these orders; and

(c) The wife shall indemnify and keep the husband indemnified in relation to any liabilities over the property at B in Melbourne (“the [B]”) registered in her sole name, the property T in the State of Queensland, and the property at R in the State of Victoria and the husband shall indemnify and keep the wife indemnified against any liability in relation to the property at D in the State of Victoria.

That in the event that the whole of the payment has not been made by the date then the wife shall sign all documents and do all things necessary to transfer to the husband the B property to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale shall be applied:

(a) First to pay all costs, commissions and expenses of the trust transfer and the sale;

(b) Secondly to discharge any mortgage or encumbrance affecting the B property;

(c) Thirdly to pay to the husband so much of the payment as is then outstanding together with interest thereon at the rate prescribed in the Family Law Rules; and

(d) Fourthly to pay the balance to the wife.

That pending the payment or completion of the sale:

(a) The wife shall have the sole right to occupy the B property and during such right of occupation the wife shall pay all out-goings in relation to the B property as they fall due and shall indemnify and keep the husband indemnified in relation to same; and

(b) The wife holds her interest in the B property upon trust pursuant to these orders and shall not encumber the B property without the consent in writing of the husband until the payment has been made in full.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or subsequent orders:

(a) Each party shall be solely entitled to the exclusion of the other party to all other property in the name or the possession of such party as at the date of these orders; and

(b) Each party forgoes any claims they may have to any superannuation benefits belonging to or earned by the other.

That the parties’ applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

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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