HOLBERT & HOLBERT - [2019] FamCA 566

FAMILY COURT OF AUSTRALIA

HOLBERT & HOLBERT

[2019] FamCA 566

FAMILY LAW – PROPERTY– Interim property settlement – application by the wife for sale of real property of the parties located in the UK and interim property distribution – cross application by the husband for sale of former matrimonial home – where the wife and children continue to reside in former matrimonial home and the wife seeks to retain former matrimonial home as part of the final property settlement – where the husband submits that former matrimonial home will not be able to be retained at final settlement and should be sold now – where not clear whether it will be necessary to sell former matrimonial home at final settlement – orders for the sale of real property located in the UK and interim property distribution

Family Law Act 1975 (Cth) ss 75(2), 79(4), 80(1)(h)

In the Marriage of Bearup (1993) FLC 92-412
Gabel & Yardley (2008) FLC 93-386
Harris and Harris (1993) FLC 92-378
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-446
In the Marriage ofZschokke (1996) FLC 92-693

APPLICANT:

Ms Holbert

RESPONDENT:

Mr Holbert

FILE NUMBER:

(P)MLC

2024

2018

DATE DELIVERED:

22 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

28 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC

SOLICITOR FOR THE APPLICANT:

Scanlan Carroll Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Mawson QC

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

Orders

The following properties be sold forthwith at fair market value by an agent appointed by the Wife:
(a) D Street, City G, the UK;
(b) B Property, Town F, the UK.
Upon settlement of the sale of the properties pursuant to order 1 hereof, the proceeds of sale be applied by priority as follows:
(a) to pay the costs of and incidental to the sale;
(b)to discharge the applicable, disclosed mortgages encumbering title together with any arrears of rates, taxes and charges payable at law;
(c)to pay the amount of A$250,000 to the Wife, A$100,000 of which to be set aside for the payment of mortgage instalments on the property at J Street, Suburb K; and
(d) the balance to be distributed equally between the Husband and the Wife.
By 4:00pm on Friday 30 August 2019 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the Wife’s Amended Application in a case filed 17 May 2019.
By 4:00pm on Friday 13 September 2019 the parties file and serve any written submissions in reply to any application for costs.
Save and except for any application for costs as set out herein, the Wife's Amended Application in a Case filed 17 May 2019 and the Husband’s Response to Application in a Case filed 10 May 2019 be otherwise dismissed, and all extant applications for final orders be placed in the list of cases awaiting allocation to a judicial docket.

Note: The form of the…

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.

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Details

AGLC: HOLBERT & HOLBERT [2019] FamCA 566
Case: [2019] FamCA 566
Decision Date: 22 August 2019

CaseChat Overview and Summary

In the matter of HOLBERT & HOLBERT, McEvoy J of the court made orders concerning the division of property between the Husband and the Wife. The dispute involved the sale of two properties located in the UK and the distribution of the proceeds, as well as the dismissal of certain applications and the listing of remaining matters.

The court was required to determine the method of sale for the UK properties, the priority of payments from the sale proceeds, and the disposition of the parties' applications for final orders. Specifically, the court needed to decide how the proceeds would be applied after sale, including the discharge of mortgages and the allocation of funds to the Wife and Husband.

McEvoy J ordered that the two UK properties be sold forthwith at fair market value by an agent appointed by the Wife. The proceeds of sale were to be applied first to the costs of sale, then to discharge any mortgages, rates, taxes, and charges. Following this, A$250,000 was to be paid to the Wife, with A$100,000 of that sum to be set aside for mortgage instalments on the J Street property. The remaining balance of the sale proceeds was to be divided equally between the Husband and the Wife. The Wife's amended application and the Husband's response were otherwise dismissed, with remaining applications for final orders to be listed for judicial allocation, save for any applications for costs. The parties were also directed to file written submissions regarding costs.

Orders

Orders of the court

The following properties be sold forthwith at fair market value by an agent appointed by the Wife:

(a) D Street, City G, the UK;

(b) B Property, Town F, the UK.

Upon settlement of the sale of the properties pursuant to order 1 hereof, the proceeds of sale be applied by priority as follows:

(a) to pay the costs of and incidental to the sale;

(b) to discharge the applicable, disclosed mortgages encumbering title together with any arrears of rates, taxes and charges payable at law;

(c) to pay the amount of A$250,000 to the Wife, A$100,000 of which to be set aside for the payment of mortgage instalments on the property at J Street, Suburb K; and

(d) the balance to be distributed equally between the Husband and the Wife.

By 4:00pm on Friday 30 August 2019 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the Wife’s Amended Application in a case filed 17 May 2019.

By 4:00pm on Friday 13 September 2019 the parties file and serve any written submissions in reply to any application for costs.

Save and except for any application for costs as set out herein, the Wife's Amended Application in a Case filed 17 May 2019 and the Husband’s Response to Application in a Case filed 10 May 2019 be otherwise dismissed, and all extant applications for final orders be placed in the list of cases awaiting allocation to a judicial docket.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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