Harrold and Harrold

[2011] FamCA 511

FAMILY COURT OF AUSTRALIA

HARROLD & HARROLD [2011] FamCA 511

FAMILY LAW – PROPERTY - Final Property Orders – Just and Equitable Settlement – s.79(2) of Family Law Act - Finality

Family Law Act 1975

APPLICANT: Ms Harrold

RESPONDENT: Mr Harrold

FILE NUMBER: MLC 6406 of 2008

DATE DELIVERED: 27 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

IT IS ORDERED BY CONSENT:

1. THAT all previous Orders of this Court, including any Orders for costs, be and are hereby discharged.

2. THAT the Husband pay to the Wife the sum of $552,000 (the payment) as follows:

   a)$25,000 on or before 11 July 2011;

   b)$527,000 on or before 26 August 2011.

3. THAT contemporaneously with the payment, the Wife remove the Caveat lodged by her on the Titles to 4 L Street and 5 L Street, at her expense.

4. THAT in the event that the payments are not made in accordance with paragraph 2 hereof, and any default continues for a further thirty (30) days, then the Husband sign all documents and do all things necessary to transfer to the Wife the real property at 4 L Street, to be held on trust for sale (“the sale”) and the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale the proceeds of the sale be applied:

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

   b)secondly to discharge the mortgage to the ANZ Bank registered on the Title to the real property;

   c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 12.5 per centum per annum adjusted monthly from the date payments are due to the Wife;

   d)fourthly the balance to the Husband.

5. THAT pending the payment or completion of the sale:

   a)the Husband have the sole right to occupy the real properties at 4 L Street and 5 L Street and that during such right of occupation, the Husband pay all instalments pursuant to the mortgages and all rates and taxes and like apportionable outgoings of the real properties as they fall due;

   b)the parties hold their respective interest in the real properties upon trust pursuant to these Orders;

   c)neither party further encumber the real properties at 4 L Street and 5 L Street, without the consent in writing of the other party.

6. THAT the Husband and Wife be liable for and indemnify the other against all payments in respect of any debts accrued in their own names.

7. THAT unless otherwise provided for in these or any subsequent Orders:

   a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Husband);

   b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

   d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

8. THAT there be liberty to the Wife to apply to sell 5 L Street, in the event that the net proceeds of sale of 4 L Street are insufficient to make the payments.

9. THAT the Application filed 15 July 2008 and Amended Application filed 10 June 2011 and the Response filed 8 September 2009 and the Amended Response filed 21 June 2011 be otherwise dismissed.

   IT IS CERTIFIED

10. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

    IT IS NOTED

11. THAT the parties intend these Orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Harrold & Harrold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6406 of 2008

Ms Harrold

Applicant

And

Mr Harrold

Respondent

REASONS FOR JUDGMENT

1. The matter of Harrold is listed before me for a defended hearing.  Experienced Counsel appear for both parties and, likewise, solicitors of long standing represent each of them.  The parties are both in Court.  I have a very particular knowledge of the background, the case management and the facts and circumstances of and related to this long-standing matter which happens to be the second longest matter in my docket from date of issue.  Proceedings were issued almost three years ago and finally today they resolve on the basis of the husband’s retention of the two properties at 4 L Street and 5 L Street, upon payment to the wife of $552,000 on very tight terms and conditions as provided for in paragraphs 2, 3 and 4 of the proposed consent orders which are now before me and have been signed by both parties on the advice and recommendation of legal practitioners.

2. This morning I read the agreed expert valuations of both properties.  Those valuations have been marked exhibit “H1” and “H2” in the proceedings and will be retained on the court file.  In particular, I carefully read the qualifications to the valuation of the business premises which is affected by subterranean seepage of petroleum or other contaminants.  The husband is aware and his Counsel has outlined to the Court that he takes the property subject to all of its particular problems and with perhaps the unknown extent of whether the clean up and other environmental and repair costs may or may not be greater than that estimated and allowed for and incorporated within the report of the property valuer.  The parties are content and the Court accepts the basis of their approach to dealing with that somewhat unique property. 

3. Otherwise, the contributions under section 79(4) of the Family Law Act 1975 and the various 75(2) factors have been developed in each of the substantial affidavits relied upon by the parties, which I have read and understand.  Likewise, I have taken the time to carefully read both financial statements.  In the wife’s statement of assets and liabilities she identified other debts personal to her, substantially related to costs of litigation or otherwise personal expenses, a business loan, a car loan and the like.  All of those matters are her ongoing financial obligation and in that regard the husband is indemnified for any such payments on behalf of the wife and, likewise, the husband is responsible for his family and related financial obligations and he indemnifies the wife against all of those, including that of his sister and that is raised because of the earlier documents filed long ago with the Court. 

4. There are no corporate structures to deal with and, otherwise, the division of assets is straight forward in that the husband takes and retains both properties upon payment of $552,000 strictly pursuant to the orders as were negotiated out of Court by the parties and their legal advisers. I am satisfied that the proposed orders are proper. I conclude that it is a just and equitable settlement pursuant to section 79(2) of the Family Law Act 1975 and I will both endorse the settlement and pronounce the necessary orders. 

5. I take this opportunity to record that these orders are final and I have emphasised the finality of the orders to both the husband and wife.  I am satisfied they know and understand there is no other matter before this Family Court.  I record, however, that before the Federal Magistrates Court there are child support proceedings which have been heard and which await judgment from Hughes FM.  That judgment and any payment or other implication thereunder is entirely separate from these orders and the payment now to be made by the husband to the wife. 

6. Finally, I congratulate the parties on making a decision to settle the matter and avoid several further days in Court.  I perhaps have shown a level of frustration that this matter did not settle a year or two ago when the savings may have been substantial, but sometimes cases just travel the distance; this may have been one of those.  But it is now concluded.  I congratulate the solicitors who have obviously put a lot of work and thought into the preparation of documents and to counsel who brought all the issues together, gave advice and calculated a figure that is very, very appropriate.  As I said earlier, I conclude this is a just and equitable settlement and that brings down the curtain on this section 79 proceeding.

7. I, therefore, pronounce in orders in terms of the minutes of orders which I will have engrossed by the wife’s solicitor and forwarded to my associate. 

I certify that the preceding seven
(7) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 27 June 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………

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