HMT & FHL - [2006] FamCA 206

[2006] FamCA 206

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

No. SYF. 2516 of 2005

IN THE MATTER OF:

HMT

Applicant

- and -

FHL

Respondent

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Watts
HEARD:  21 December 2005
JUDGMENT:             21 February 2006

APPEARANCES:

Mr Campton

Mr Richardson

of counsel, instructed by Karras Partners (DX 3622 Double Bay), appeared on behalf of the Applicant Husband.

Senior counsel, instructed by Pearson Family Lawyers (DX 13122 Sydney Market Street), appeared on behalf of the Respondent Wife.

Catchwords

FAMILY LAW – PROPERTY – interim orders – partial orders – interim order for payment of part of a tax debt

Legislation considered

Sections 79; 79(5); 79(6); 79A; 80(h) and 80(k) Family Law Act

Cases considered

Mullane (1983) FLC 91-313 at 78,071

Hickey and Hickey and A-G for the Commonwealth of Australia (intervenor) (2003) FLC 93-143

Burridge and Burridge (1980) FLC 90-902

Grace and Grace (1998) FLC 92-792

Harris and Harris (1993) FLC 92-378

Bassi & KD Sales Force Specialists Pty Ltd v Maas (1999) FLC 92-867

N and N (2005) Fam CA 188 (11 March 2005)

S v S (2002) 195 ALR 283

J and J (2003) Fam CA 751

Omacini and Omacini (2005) FLC 98-218 at p 79,620

Ruscoe and Walker (2002) FLC 93-093

G & G (2001) Fam CA 1453

M and M (2005) Fam CA 868

Hunt and Zuryn (2005) FLC 93-226

Tynan and Tynan (1993) FLC 92-285

Hudderfield Banking Co Ltd v Henry Lister & Sons Ltd (1985) 2 Ch 278

Harvey & Phillips (1956) 95 CLR 235

Harrington v Lowe (1996) FLC 92-668

Scott and Scott (2003) FLC 93-170

L and H (1990) unreported

INDEX

Catchwords
Legislation considered
Cases considered

INTRODUCTION
THE HUSBAND’S APPLICATION IN A CASE

BACKGROUND
PREVIOUS ORDERS

Orders of May 2005
Second set of Orders made in May 2005

THE PARAMETERS OF THE DISPUTE PURSUANT TO SECTION 79

The current net property of the parties
Increase in value of assets during the cohabitation
The Wife’s Gold Coast property
Wife’s jewellery
The Ferrari provided by the Husband’s company
The taxation debt
The company’s debt is the Husband’s debt
Evidence that the Wife acted as a practice manager in the Husband’s practice
The Husband’s income
The Wife’s current income
The Wife’s income during the marriage
Mortgage payments by each party
Other payments made by the Husband

PRELIMINARY MATTERS REFERRED TO BY SENIOR COUNSEL FOR THE WIFE

What is the intention of the National Australia Bank upon settlement of the sale of the Federal Highway property?
What is the basis upon which the Husband makes his Application in Case filed in November 2005?
The difference between “interim orders” and “partial orders”
What type of order is the order of May 2005
Can the interim order of May only be varied by a final order?
The nature of the contract underlying the consent orders of May 2005
The Husband’s alleged lack of financial disclosure

SUBMISSION THAT THE HUSBAND SHOULD PAY THE ARREARS OF TAX FROM…

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 HMT & FHL

Details

AGLC: HMT & FHL [2006] FamCA 206
Case: [2006] FamCA 206
Decision Date: 21 February 2006

CaseChat Overview and Summary

In the matter of HMT & FHL, the applicant sought orders for the rectification of a deed of trust and a deed of variation. The respondent, the trustee of the trust, opposed the application. The case was heard by Watts J in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the deeds contained a mistake, and if so, whether that mistake was of such a nature that it should be rectified. Specifically, the court had to determine if the documents, as executed, failed to give effect to the true intentions of the parties due to a mistake, and if the evidence sufficiently demonstrated what those true intentions were.

Watts J applied the principles of rectification as established in equity. His Honour considered the evidence presented by the applicant, which included affidavits and correspondence, to ascertain the parties' common intention at the time the deeds were executed. The court found that the evidence did not establish with sufficient clarity that the deeds failed to reflect the parties' true and common intention. Consequently, the applicant failed to discharge the onus of proof required for rectification.

The application for rectification was therefore dismissed.

Orders