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Haseloff & Kormann

Haseloff & Kormann

Case [2013] FamCA 1019 20 December 2013

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FAMILY COURT OF AUSTRALIA

HASELOFF & KORMANN AND ORS

[2013] FamCA 1019

FAMILY LAW – PROPERTY– final orders – adjustment of property interests – consideration of s 79(2) of the Family Law Act 1975 (Cth) and Stanford v Stanford [2012] HCA 52 – where just and equitable to make a property order – where contributions were assessed as equal – where no adjustment made upon consideration of s 75(2) factors – orders made.

FAMILY LAW – PROPERTY – Transaction to defeat claims – where the husband’s father and a business entity have been joined to the proceedings as the second and third respondents – where the wife seeks that certain transactions be set aside pursuant to s 106B of the Family Law Act 1975 (Cth) – consideration of s 106B – orders made.

Family Law Act 1975 (Cth) s 4; 75; 78; 79; 106B

In the Marriage of Rickie (1979) 4 Fam LR 737
In the Marriage of Heath (1983) 9 Fam LR 97
In the Marriage of D (1984) 10 Fam LR 73
In the Marriage of Turnbull (1990) 15 Fam LR 81
Gelley & Gelley (No 2) (1992) FLC 92-291
Halabi and Artillaga (1993) 17 Fam LR 675
Hickey & Hickey (2003) FLC 93-143
Stephens & Stephens (2007) FLC 93-336
Kennon v Spry (2008) FLC 93-388
Norman & Norman [2010] FamCAFC 66
Bourke & Bourke and Anor (Final Hearing Costs) [2010] FamCA 199
Stanford v Stanford [2012] HCA 52; (2012) 239 ALR 70
Marello & Marello [2013] FamCA 254
Bevan & Bevan [2013] FamCAFC 116

APPLICANT:

Ms Haseloff

RESPONDENT:

Mr Kormann

SECOND RESPONDENT:

Mr Kormann Snr

THIRD RESPONDENT:

Kormann Nominees Pty Ltd

FILE NUMBER:

ADC

4563

2010

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

4-7 March 2013 &
20 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT:

Mr Scragg

SOLICITOR FOR THE RESPONDENT:

Peter Scragg & Co

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

Mr Jordan

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Jordan & Fowler

Orders

Within sixty [60] days from this date the husband:
(a)transfer to the wife any interest at law or in equity in the former matrimonial home at Town S in the State of South Australia being the property described in Certificate of Title Register Book Volume … Folio … which shall thereafter be the sole property of the wife;
(b)pay all sums and do all things necessary to discharge the joint liability of the parties pursuant to the Memorandum of Mortgage Number …86 in favour of Westpac Banking Corporation;
(c)pay to the wife the sum of SEVEN HUNDRED THIRTY THREE THOUSAND SIX HUNDRED AND SIXTY EIGHT DOLLARS [$733,668.00].
Upon transfer of the property, discharge of mortgage and the payment of the SEVEN HUNDRED THIRTY THREE THOUSAND SIX HUNDRED AND SIXTY EIGHT DOLLARS [$733,668.00] the wife contemporaneously transfer to the husband all her shares and any interest…

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 Haseloff & Kormann

Details

AGLC: Haseloff & Kormann [2013] FamCA 1019
Case: [2013] FamCA 1019
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the Family Court of Australia, Dawe J considered a property dispute between a husband and wife, where the husband's father and a business entity were joined as respondents. The wife sought to set aside certain transactions pursuant to s 106B of the *Family Law Act 1975* (Cth), alleging they were undertaken to defeat her claims.

The court was required to determine whether it was just and equitable to make a property adjustment order under s 79 of the *Family Law Act 1975* (Cth), having regard to the parties' contributions and the factors enumerated in s 75(2). Additionally, the court had to consider the application of s 106B of the *Family Law Act 1975* (Cth) in relation to the transactions challenged by the wife.

His Honour found that the parties' contributions were equal and, after considering the s 75(2) factors, determined that no further adjustment was warranted. The court also found that the transactions in question should be set aside pursuant to s 106B of the *Family Law Act 1975* (Cth). The orders made included the transfer of the former matrimonial home and a significant sum of money from the husband to the wife, the contemporaneous transfer of the wife's interests in certain entities to the husband, and the husband's indemnity in respect of specific debts. Each party was to retain their superannuation entitlements and personal property not otherwise dealt with.

Orders

Orders of the court

Within sixty [60] days from this date the husband:

(a) transfer to the wife any interest at law or in equity in the former matrimonial home at Town S in the State of South Australia being the property described in Certificate of Title Register Book Volume … Folio … which shall thereafter be the sole property of the wife;

(b) pay all sums and do all things necessary to discharge the joint liability of the parties pursuant to the Memorandum of Mortgage Number …86 in favour of Westpac Banking Corporation;

Upon transfer of the property, discharge of mortgage and the payment of the SEVEN HUNDRED THIRTY THREE THOUSAND SIX HUNDRED AND SIXTY EIGHT DOLLARS [$733,668.00] the wife contemporaneously transfer to the husband all her shares and any interest or claim in any of the entities referred to in this judgment including but not limited to the entities named in the annexure.

The husband do indemnify the wife in respect of any debts or liabilities to any of the entities referred to in this judgment including but not limited to the entities named in the annexure.

Each party retain his or her superannuation entitlements.

Save as herein set out each party retain as their sole property the personal property in their respective power, possession or control.

Pursuant to s 106B of the Family Law Act 1975 (as amended) the following transactions are set aside:

(a) the Deed of Rectification and Amending Kormann Family Trust dated 21 May 2010 between:

the husband;

Mr Kormann Snr; and

Kormann Nominees Pty Ltd ACN …

and

(b) any transfer of the husband’s shareholding in Korman Nominees Pty Ltd to Mr Kormann Snr.

Failing agreement the question of costs is reserved to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Haseloff & Kormann [2013] FamCA 1019

Most Recent Citation

Porter & Porter [2022] FedCFamC1F 102

Cases citing this decision · 7 of 7 shown

Vang & Chung (No 3)
[2024] FedCFamC1F 101 Para 32

…eing defeated by the disposition at the time it was made ( Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139 at [45]; Haseloff & Kormann [2013] FamCA 1019 at [58]; Riemann & Riemann (No 3) [2017] FamCA 911 at [39]–[49]). There were no proceedings instituted under Pt VIII of the Act in June 2017. According t…
Wei & Xia (No 5)
[2023] FedCFamC1F 679

…eath and Heath; Westpac Banking Corp. (1983) FLC 91-362 Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19…
Cun & Zhihui (No 4)
[2023] FedCFamC1F 581 Para 32

…FLC 91-362 at 78,425 per Nygh J; D and D at 79,777 per Gee J; Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139 at [45]; Haseloff & Kormann [2013] FamCA 1019 at [58]; Riemann & Riemann (No 3) [2017] FamCA 911 at [39]–[46] (“ Riemann ”).…
Porter & Porter
[2022] FedCFamC1F 102 Para 4

…J; In the Marriage of D (1984) FLC 91-593 at 79,777 per Gee J; Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139 at [45]; Haseloff & Kormann [2013] FamCA 1019 at [58]; Riemann & Riemann (No 3) [2017] FamCA 911 at [39]–[46].…
Salim and Hakim (No. 2)
[2021] FamCA 495 Para 39

…In Haseloff & Korman and Ors [2013] FamCA 1019 at [58] Dawe J referred to relevant authorities[7] in concluding that: The wording of s 106B is such that the following questions must be answered affirmatively for the wife’s claim to succeed: a) are there “proceedings under this Act”? b) is there an “instrument or dis…
Riemann & Riemann and Ors (No. 3)
[2017] FamCA 911 Para 1

…existing or anticipated order in those proceedings” or “irrespective of intention, is likely to defeat any such order”? [6] [2013] FamCA 1019 at [58]. [7] Murphy J in Bourke & Bourke and Anor (Final Hearing Costs) [2010] FamCA 199 (17 March 2010) at [45], with a similar approach being used when s 106B was known as s…
Haseloff and Kormann and Ors
[2014] FamCA 570

…Haseloff & Kormann and Ors [2013] FamCA 1019 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800…

View all 7 citing cases →

Cases cited in this decision · 6 of 6 shown

MARELLO & MARELLO
[2013] FamCA 254 Para 2

…erty of the parties or either of them [has] been brought to an end by” the dissolution of the marriage (per Murphy J in Marello & Marello [2013] FamCA 254 at [15]).…
Stanford v Stanford
[2012] HCA 52 Para 1

…08) FLC 93-388, the decision of the Full Court of this Court in Clauson & Clauson (1995) FLC 92-595, the decision of the High Court of Australia in Stanford v Stanford (2012) 293 ALR 70 and the article of Patrick Parkinson entitled “ Family trusts and third parties under the Family Law Act 1975 ” (2012) 26 Australian Journal…
Norman & Norman
[2010] FamCAFC 66 Para 4

…butions (see, eg, the comments of Bryant CJ and Thackray J in Bevan (Supra) at [65]). However, as noted by Finn, May and Murphy JJ in Norman & Norman [2010] FamCAFC 66 at [60], the established four step approach “merely illuminates the path to the ultimate result” and is not an approach that is mandated by the Act.…
Bourke v Bourke (Final Hearing Costs)
[2010] FamCA 199 Para 4

…Such an approach was highlighted by Murphy J in Bourke & Bourke and Anor (Final Hearing Costs) [2010] FamCA 199 (17 March 2010) at [45], with a similar approach being used when s 106B was known as s 85 prior to an amendment to the Act occurring in late 2000 (see, eg, the approach of Gee J in In the Marriage of D (1…
Kennon v Spry
[2008] HCA 56 Para 1

…The wife’s list of cases/materials refers to the decision of the High Court of Australia in Kennon v Spry (2008) FLC 93-388, the decision of the Full Court of this Court in Clauson & Clauson (1995) FLC 92-595, the decision of the High Court of Australia in Stanford v Stanford (2012) 293 ALR 70 and the article of Patric…
Bevan & Bevan
[2013] FamCAFC 116 Para 3

…to the operation of s 79 at (2012) 239 ALR 70, 78–79. Those propositions were conveniently summarised by Bryant CJ and Thackray J in Bevan & Bevan [2013] FamCAFC 116 (8 August 2013) at [73]: The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges i…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
4 2 mentions (from Para 6)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)