Horvat & Juric (No 3) - [2022] FedCFamC1F 733

Federal Circuit and Family Court of Australia
(DIVISION 1)
Horvat & Juric (No 3) [2022] FedCFamC1F 733

File number(s): SYC 5613 of 2017

Judgment of: ALDRIDGE J

Date of judgment: 27 September 2022

Catchwords: FAMILY LAW – PROPERTY – Application for final property settlement orders – Where the parties agree that the property distributed so that the wife receives 57.5% and the husband receive 42.5% – Where the value of the property to be divided is in dispute – Orders made for the husband to transfer to the wife a property upon the wife discharging the mortgage – Orders made for the husband to make a cash payment to the wife – Further orders made to deal with those events not occurring.

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 117

Cases cited:
Chorn and Hopkins (2004) FLC 93-204

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317

Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201

Jones v Dunkel (1959) 101 CLR 298

Norbis v Norbis (1986) 161 CLR 513

Sahrawi & Hadrami (2018) FLC 93–857

Trevi & Trevi (2018) FLC 93-858

Division: Division 1 First Instance

Number of paragraphs: 77

Date of last submissions: 26 August 2022

Date of hearing: 18–19 July 2022

Place: Sydney

Counsel for the Applicant: Mr Eardley

Solicitor for the Applicant: S & R Lawyers

Counsel for the Respondents: Mr Doupe

Solicitor for the Respondents: Garry Pickering Solicitors
ORDERS

SYC 5613 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HORVAT

Applicant

AND:
MR JURIC

First Respondent

D PTY LTD

Second Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

27 September 2022

THE COURT ORDERS THAT:
1.Within 28 days from the date of these orders, the husband will do all such acts and things and sign all documents as may be required to transfer to the wife all of his interest in the property situated at 1 F Street, Suburb G in the State of New South Wales being the whole of the land described in Certificate of Title Reference Lot … (“the 1 F Street property”).
2.In the event that within 90 days of these orders the wife pays the mortgagee of the property situated at 2 F Street, Suburb G in the State of New South Wales being the whole of the land being more particularly described in Certificate of Title Reference Lot … (“the 2 F Street property”) the sum of $758,294, the husband shall forthwith:
(a)Take all necessary steps, including making any necessary further payment, to discharge the mortgage; and
(b)Do all such acts and things and sign all documents as may be required to transfer to the wife all of his interest in the property.

3.If the wife does not make the payment referred to in Order 2 within the time prescribed, the husband shall forthwith do all acts and things necessary to cause the 2 F Street property to be listed for sale by…

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 Horvat & Juric (No 3)

Details

AGLC: Horvat & Juric (No 3) [2022] FedCFamC1F 733
Case: [2022] FedCFamC1F 733
Decision Date

CaseChat Overview and Summary

Horvat & Juric (No 3) involved a dispute over the division of property between a husband and wife following their separation. The case was heard in the Family Court of Australia. The primary issue for the court was to determine the appropriate division of the parties' assets, taking into account the respective contributions and needs of each party.

The court had to decide how to distribute the couple's non-superannuation assets, add backs, liabilities, and superannuation. The court calculated the net assets and determined the percentage each party was entitled to receive. The wife was found to be entitled to 57.5% of the net assets, which amounted to $5,551,368, while the husband was entitled to $4,103,185. The court further needed to decide which specific properties each party should receive. While it was agreed that the wife should receive certain properties, there was a dispute over which additional property she should receive. The husband argued that the wife should not receive a property with an existing mortgage, whereas the wife argued that she should have the opportunity to refinance the mortgage.

The court reasoned that the wife should receive the opportunity to refinance the mortgage on one of the properties, as it would not be in the spirit of the Family Law Act to force the parties to continue owning adjoining properties. The court ordered that the wife would receive certain properties and the husband would make a cash payment to the wife. If the husband could not refinance, a property owned solely by him would be sold to make the payment. The court ordered that the wife would receive the 1 F Street property, Motor Vehicle 1, and the net proceeds of the 2 F Street property. The husband was ordered to make an adjusting payment within 90 days, and if he failed to do so, the Suburb L property would be sold to make the payment.

Orders

Orders of the court

Full text does not contain this section.

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

Accordingly, the non-superannuation assets come to $11,429,346 and the add backs of $269,349. From these there must be subtracted liabilities of $2,452,846 and superannuation of $408,705 added. This comes to a net assets figure of $9,654,554, of which the wife is entitled to 57.5% or $5,551,368. The husband is entitled to $4,103,185.Conclusion The parties provided further written submissions as to how the properties should be distributed given the above finding. It was agreed in those submissions that the wife should receive Motor Vehicle 1 valued at $60,000. It does not appear separately as an asset in the earlier list because it is owned by one of the companies owned by the husband. It is currently in the in possession of the wife. It is also agreed that the wife should receive the property situated at 1 F Street, Suburb G (“the 1 F Street property”). The wife sought that, in addition, she should receive the property at 2 F Street, Suburb G (“the 2 F Street property”), whereas the husband proposed that she receive the property at E Street, Suburb L (“the Suburb L property”). The reasoning behind the husband’s proposal is that the wife does not have any capacity to borrow and to discharge a mortgage. The 2 F Street property is encumbered by a mortgage, unlike the Suburb L property. Whilst there is force in this agreement, the wife has expressed the view that she will be able to refinance and little will be lost by giving her at least the opportunity to do so. If she is unable to do so, it will be sold. It would not be desirable and not in the spirit of s 81 of the Act for the parties to continue to own adjoining properties. On the above figures, the husband will have to make a cash payment to the wife. I accept his submission that he will need to refinance and may need to sell a property to make the payment, which could take some time. I do not agree with the wife that the husband should have planned to have a sufficient sum on standby to make the payment. The composition of the property was disputed, making it difficult to finance what payment would be required. I accept that, to the extent necessary, that a property owned solely by the husband, as opposed to a property owned by him with others, should be sold to make the payment to the wife, if he is unable to refinance. Accordingly, the orders will provide for the wife to receive the 1 F Street property and Motor Vehicle 1. The wife will have 90 days to discharge the mortgage over the 2 F Street property, and that taking place, the property will be transferred to her. If she is unable to do so, it will be sold with the wife to receive the net proceeds of sale. Thus the wife will receive the 1 F Street property ($3,650,000), the net proceeds of the 2 F Street property ($1,391,706), Motor Vehicle 1 ($60,000) and her superannuation ($195,966), being a total of $5,297,672. The husband will make an adjusting payment of $253,697 within 90 days and if he fails to do so, the Suburb L property will be sold and the payment will be made to the wife from the net proceeds with the husband retaining the balance.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5613 of 2017
Judgment of:	ALDRIDGE J
Date of judgment:	27 September 2022
Catchwords:	FAMILY LAW – PROPERTY – Application for final property settlement orders – Where the parties agree that the property distributed so that the wife receives 57.5% and the husband receive 42.5% – Where the value of the property to be divided is in dispute – Orders made for the husband to transfer to the wife a property upon the wife discharging the mortgage – Orders made for the husband to make a cash payment to the wife – Further orders made to deal with those events not occurring.
Legislation:	Family Law Act 1975 (Cth) ss 75(2), 79, 117
Cases cited:	Chorn and Hopkins (2004) FLC 93-204 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 Jones v Dunkel (1959) 101 CLR 298 Norbis v Norbis (1986) 161 CLR 513 Sahrawi & Hadrami (2018) FLC 93–857 Trevi & Trevi (2018) FLC 93-858
Division:	Division 1 First Instance
Number of paragraphs:	77
Date of last submissions:	26 August 2022
Date of hearing:	18–19 July 2022
Place:	Sydney
Counsel for the Applicant:	Mr Eardley
Solicitor for the Applicant:	S & R Lawyers
Counsel for the Respondents:	Mr Doupe
Solicitor for the Respondents:	Garry Pickering Solicitors

SYC 5613 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HORVAT Applicant
AND:	MR JURIC First Respondent D PTY LTD Second Respondent

order made by:	ALDRIDGE J
DATE OF ORDER:	27 September 2022