Hinde & Hinde and Anor

[2008] FamCA 24

FAMILY COURT OF AUSTRALIA

HINDE & HINDE AND ANOR [2008] FamCA 24

FAMILY LAW – PROPERTY – Dissipated funds to be recouped from third party before distribution – Bona fide purchaser

APPLICANT: Mrs Hinde

FIRST RESPONDENT:	Mr Hinde
SECOND RESPONDENT	Mr Fray

FILE NUMBER: (P) BRF 811 of 2006

DATE DELIVERED: 25^th January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carmody J

HEARING DATE: 20 and 21 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burridge

SOLICITOR FOR THE APPLICANT: Hogan Stanton Lawyers

FIRST RESPONDENT: Mr G.I. Holmes

SOLICITOR FOR THE SECOND

RESPONDENT:

MacPherson & Kelly

Orders

1. I direct the parties’ lawyers to confer and email either a draft consent minute or competing proposals (with short written reasons) of property orders giving practical expression to this judgment by 4.00 pm on 6^th February 2008.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Hinde  

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 811 of 2006

Mrs Hinde

Applicant

And

Mr Hinde

Respondent

And

Mr Fray
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the wife’s application for property settlement.  It is one of those rare and exceptional cases where, instead of dealing with existing property owned and in the possession of a party the claimant has to recoup dissipated funds from a third party before the redistribution exercise can be conducted. 

2. The major assets at stake are the former matrimonial home at A and a farm in Tasmania with an estimated but unsubstantiated combined market value of around $600,000.  The husband holds the legal title in both but there isn’t much equity left in either because of the post filing disposal of nearly $1/2 million most of which was given to the second respondent as part of an alleged sponsorship deal and the rest spent on living expenses.

3. The second respondent is a businessman and appears to have a controlling interest in a trading company valued in excess of $2,025,000. He used the $430,000 received from the husband in 2006 to discharge private as well as business debts in addition to funding his sporting career. He denies any personal liability to repay but there is no evidence that requiring him to do so would cause undue financial hardship or that it is possible to meet the wife’s claim from alternative sources or by other means.[1]

   [1] cf: In the Marriage of Heath;Westpac Banking Corporation Intervening (1983) 9 Fam LR 97 at 110

4. The issues for determination are, firstly, whether an order setting aside the suspect transaction should be made under s 106B of the Family Law Act 1975 and, if so, who, if anyone, is legally responsible for reimbursing the wife.

5. Mr Sweeney accepts for the purposes of argument that subject to meeting procedural justice requirements generally and the right to be heard in particular, it is possible to attack a non party…