FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEWITT & CORBETT & ANOR | [2016] FCCA 776 |
| Catchwords: FAMILY LAW – Property – inheritance – contributions – section 75(2) factors – non-disclosure – husband self-represented. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79, 81, 117, 177 Federal Circuit Court Act 1999 (Cth), s.86 |
| Cases cited: Stanford v Stanford [2012] HCA 52 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 G & G (1984) FLC 91-582 Mallett & Mallett (1984) FLC 91-507 Re Chemaisse; Federal Commissioner of Taxation (Intervener)(1990) FLC 92-133 Coghlan & Coghlan (2005) FLC 93-220 Meads v Meads (2012) ABQB 571 Bishop & Bishop (2013) FLC 93-553 Mistle & Mistle [2010] FamCA 29 Elgabri & Elgabri [2009] FamCA 227 White and Tulloch v White (1995) FLC 92-640 Kowaliw & Kowaliw (1981) FLC 91-092 Farmer & Bramley (2000) 27 FamLR 316 Bonnici v Bonnici (1992) FLC 92-272 Aleksovski & Aleksovski (1996) FLC 92-705 Sippel & Sippel [2004] FamCA 201 Norbis & Norbis (1986) 161 CLR 513 Parshen & Parshen (1996) FLC 92-720 Weir & Weir (1993) FLC 92-338 Luciano (2000) FamCA 401 Loude & Loude [2009] FamCAFC 52 Tomasetti & Tomasetti (2000) FLC 93-023 Russell & Russell (1999) FLC 92-877 Dickson & Dickson (1999) FLC 92-843 in Colgate-Palmolive Company and Colgate-Palmolive Pty Ltd v Cussons Pty Ltd; Cussons Pty Ltd v Colgate Palmolive Company and Colgate-Palmolive Pty Ltd [1993] FCA 536; Penfold v Penfold (1980) 144 CLR 311 Latoudis v Casey(1990) 170 CLR 534 Brown v Brown [1998] FamCA 115 Collins & Collins (1985) FLC 91-603 In the marriage of Briese (1986) FLC 91-713 Kohan & Kohan (1993) FLC 92-340 |
| Applicant: | MS HEWITT |
| First Respondent: | MR CORBETT |
| Second Respondent: | MR F CORBETT |
| File Number: | SYM 6993 of 2005 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 2 & 3 November 2015 |
| Date of Last Submission: | 7 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eadley |
| Solicitors for the Applicant: | Lighthouse Law Group |
| First Respondent: | Self-represented |
| Second Respondent: | No appearance - excused |
THE COURT ORDERS THAT:
The husband and the wife do all things reasonably necessary to have the funds held in the controlled moneys account or on trust with the wife’s solicitors to be released to her or at her direction.
The husband and Mr F Corbett (pursuant to orders made on 12 April 2013) do all acts and things and sign all documents reasonably necessary to transfer the husband’s interest in the property at Property F in the State of New South Wales, being the whole of the land contained in Folio Identifier (omitted) (“the former matrimonial home”) to the wife to be held by her on trust for sale in terms of the following orders.
The wife be empowered to offer the former matrimonial home for sale and to sell it by public auction with power to fix a reserve price, or alternatively, to sell it by private…
Keep reading for free
Create a free CaseChat account to read Hewitt and Corbett and Anor and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] FCCA 776
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on achieving a just and equitable division of the parties' financial resources. It applied principles of property settlement under the *Family Law Act 1975* (Cth) to determine the respective entitlements of the husband and wife. The orders reflect a detailed allocation of responsibilities and entitlements, including provisions for the sale of the former matrimonial home, the deduction of specific expenses from the sale proceeds, and the distribution of the net proceeds in a specified percentage split between the parties. The court also made orders regarding the husband's ongoing obligations for the matrimonial home pending its sale and the retention of personal property and sole-name assets by each party.
The final orders directed the husband and wife to cooperate in releasing funds and transferring the former matrimonial home to the wife for sale. The wife was empowered to sell the property and deduct specified expenses from the proceeds before distributing 34.1% to herself and 65.9% to the husband. The husband was ordered to vacate the home within 30 days and to remove a caveat from the title. The court also made detailed provisions for the payment of costs, with the husband to pay the wife's costs, to be deducted from his share of the sale proceeds if unpaid. The Registrar of the Court was appointed to execute documents if a party refused to do so, and leave was granted for parties to approach the court for implementation of the orders.
Orders
Orders of the court
1.
The husband and the wife do all things reasonably necessary to have the funds held in the controlled moneys account or on trust with the wife’s solicitors to be released to her or at her direction.
2.
The husband and Mr F Corbett (pursuant to orders made on 12 April 2013) do all acts and things and sign all documents reasonably necessary to transfer the husband’s interest in the property at Property F in the State of New South Wales, being the whole of the land contained in Folio Identifier (omitted) (“the former matrimonial home”) to the wife to be held by her on trust for sale in terms of the following orders.
3.
The wife be empowered to offer the former matrimonial home for sale and to sell it by public auction with power to fix a reserve price, or alternatively, to sell it by private treaty at the best available price.
4.
The Certificate of title for the former matrimonial home be released to the wife or her solicitors.
5.
The Certificate of Title for the property at Property C be released to the husband.
6.
The husband vacate the former matrimonial home within thirty (30) days of the date of these orders.
7.
After sale of the former matrimonial home at auction or by private treaty, the wife be empowered to deduct from the proceeds of sale:
(a) payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Australian Property Institute or his/her nominee;
(b) the commission and other expenses (including auction expenses if any) of any real estate agent employed by the wife;
(c) the legal expenses of transferring the former matrimonial home to any purchaser;
(d) any taxes including but not limited to Land Tax;
(e) all necessary adjustments of rates and taxes on settlement of the sale (including the payment of any moneys in respect of unpaid rates, if the husband’s obligation to effect payment has not been fulfilled); and
(f) insurance and any other reasonable expenses for the protection and maintenance of the former matrimonial home, pending sale.
8.
The wife hold the proceeds of sale, after deduction of the expenses in order (7) above, on trust to:
(a) pay to the wife a sum equal to 34.1% of the net proceeds; and
(b) pay the balance (65.9%) to the husband.
9.
The husband forthwith do all acts and things to remove Caveat no. (omitted) recorded on the title of the former matrimonial home.
10.
From the date of these orders and pending sale of the former matrimonial home, the husband continue to pay, as they fall due, all regular instalments in respect of the mortgage, statutory rates and charges, utilities, house and contents insurance and the outgoings including water rates, council rates and the like in respect of the former matrimonial home and the husband hereby indemnify and keep indemnified the wife in respect of such payments.
11.
That as between the husband and the wife and subject to the above orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a) all personal property now in his/her respective possession or control;
(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c) all interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
12.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 (“the Act”) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
13.
The husband pay the costs of the wife in a sum as agreed between the parties but failing agreement within 28 days, such costs are to be referred for taxation/assessment to the Costs Assessment Registrar of the Family Court of Australia in accordance with Chapter 19 Family Law Rules 2004 with the Registrar to make such directions as necessary to implement that process and to exclude from any such taxation/assessment the wife’s costs of the Supreme Court proceedings to obtain the replacement Certificates of Title wherein no order as to costs was made and the wife’s costs of the conduct of the hearing in this Court on 9 & 10 August 2010 in terms of the dismissal of her application as against Mr S with no order as to costs between her and Mr S and further taking into account any costs orders already made on an interim/interlocutory basis or costs paid out of moneys released to the wife’s solicitors on account of her costs for the preparation of the mediation. Any such costs if unpaid to the wife are to be paid out of the husband’s entitlement in terms of order (8) above, prior to the distribution of any moneys due to him from the sale of the former matrimonial home.
14.
Leave to the parties on 7 days’ written notice to approach the Court with respect to the implementation of any of the above orders, including the release of any funds pending a determination of the wife’s cost entitlement as against the husband referred to in order (13) above.
15.
The matter is, otherwise, removed from the active pending cases list.
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.