Hearst and Hearst & Ors - [2010] FamCA 977

FAMILY COURT OF AUSTRALIA

HEARST & HEARST AND ORS

[2010] FamCA 977

FAMILY LAW – PROPERTY – Proceedings for settlement of property part of which co-owned by husband and member’s of husband’s family – Determining asset pool required determination of third party interests – Equity of exoneration successfully raised by co-owners against husband – Charge for capital value of improvements to co-owned realty by husband and wife reduced by occupation fee payable to co-owners – Co-owners entitled to orders pursuant to s 66G Conveyancing Act 1919 (NSW) in default of husband paying out their entitlements to co-owned assets as determined by the court – Approximately one third of party pool considered referrable to husband’s inheritances – Further one third considered overwhelmingly referrable to contentions by wife to jointly owned company valued at approximately one third of parties pool – Deposited valuation of company determined – Section 75(2) adjustment in husband’s favour referrable to wife’s greater earning ability – Overall entitlement of parties to non-superannuation assets determined as 48 per cent to wife and 52 per cent to husband – Entitlement of parties to superannuation interests determined as
75 per cent to wife and 25 per cent to husband – Cost reserved

Family Law Act 1975 (Cth) ss 79, 75(2)

Coulton v Holcombe (1986) 162 CLR 1
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Ryan v Dries (2002) NSWCA 3
Coghlan v Coghlan (2005) FLC ¶ 93-220
Spencer v The Commonwealth (1907) 5 CLR 418
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Commonwealth v Reeve (1949) 78 CLR 410
Preece v Preece (1981) FLC 91-048
Pierce v Pierce (1999) FLC 92-844
Kardos v Sarbutt [2006] NSWCA 11
Farmer v Bramley (2000) FLC 93-060

APPLICANT:

Ms Hearst

FIRST RESPONDENT:

Mr Hearst

SECOND RESPONDENT:

Ms Kent

THIRD RESPONDENT:

Ms Somers

FILE NUMBER:

SYC

5110

2008

DATE DELIVERED:

18 October 2010

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Dubbo and Parramatta

JUDGMENT OF:

Coleman J

HEARING DATES:

24, 25, 26, 27 August 2009 and 8 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robert Lethbridge SC with Ms Anne Rees SC

SOLICITOR FOR THE APPLICANT:

Campbell Paton & Taylor

COUNSEL FOR THE FIRST RESPONDENT:

Mr Peter Batey

SOLICITOR FOR THE FIRST

RESPONDENT:

Lee Dalton & Associates

COUNSEL FOR THE SECOND & THIRD

RESPONDENTS:

Mr Julian Millar

SOLICITOR FOR THE SECOND & THIRD

RESPONDENTS:

Messenger & Messenger

Orders

That the husband hold his equity in Lot 51 OE Property and A Property on trust for himself and the wife as tenants in common in shares of 61 percent to the husband and 39 percent to the wife.
That the parties have leave to file minutes of order implementing the court’s reasons for judgment in chambers.
That any party have liberty to apply on 48 hours notice on or after 29…

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 Hearst and Hearst & Ors

Details

AGLC: Hearst and Hearst & Ors [2010] FamCA 977
Case: [2010] FamCA 977
Decision Date: 18 October 2010

CaseChat Overview and Summary

In *Hearst and Hearst & Ors*, heard before Coleman J, the dispute concerned the division of property between a husband and wife. The court was required to determine the appropriate distribution of the parties' equity in two properties, Lot 51 OE Property and A Property.

The central legal issue before the court was how to equitably divide the parties' interests in these assets, considering their respective contributions and future needs. The court's determination would establish the respective beneficial ownership of these properties between the husband and wife.

Coleman J ordered that the husband hold his equity in Lot 51 OE Property and A Property on trust for himself and the wife as tenants in common. The shares were determined to be 61 percent for the husband and 39 percent for the wife. The parties were granted leave to file minutes of order to implement these reasons for judgment, with liberty to apply on 48 hours notice after 29 November 2010. Costs were reserved.

Orders

Orders of the court

That the husband hold his equity in Lot 51 OE Property and A Property on trust for himself and the wife as tenants in common in shares of 61 percent to the husband and 39 percent to the wife.

That the parties have leave to file minutes of order implementing the court’s reasons for judgment in chambers.

That any party have liberty to apply on 48 hours notice on or after 29 November 2010.

That costs be reserved.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.