Huxford and Skelly and Anor
[2013] FamCA 914
•24 October 2013
FAMILY COURT OF AUSTRALIA
| HUXFORD & SKELLY AND ANOR | [2013] FamCA 914 |
| FAMILY LAW – PROPERTY – SETTLEMENT IN RELATION TO MARRIAGE – Alteration of property interests – Where the parties were in a relationship of cohabitation for approximately five years with some periods of separation – Where the parties have one child together – Where each of the parties have children from prior relationships. FAMILY LAW – PROPERTY – SUPERANNUATION – Whether to treat superannuation interests in the same pool of assets as other property or in a separate pool – Where the wife is in receipt of a Police “Hurt on Duty” pension arising from injuries sustained prior to the commencement of cohabitation – Where the husband seeks a superannuation splitting order in respect of that pension. |
| Family Law Act 1975 (Cth) |
| Bevan & Bevan [2013] FamCAFC 116 |
| APPLICANT: | Ms Huxford |
| RESPONDENT: | Mr Skelly |
| INTERVENER: | Mr Preston |
| FILE NUMBER: | SYC | 1669 | of | 2010 |
| DATE DELIVERED: | 24 October 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 8 June 2011; 25 July 2011; 28-29 May 2012; 15-16 April 2013; 22-23 April 2013; 15-17 May 2013; 20 May 2013; and written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton; Mr Connor with Ms Levick |
| SOLICITOR FOR THE APPLICANT: | Dignan & Hanrahan; and self-represented |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | Spanko Soulos & Co; and Solon Lawyers |
| COUNSEL FOR THE INTERVENER: | Ms Mathias |
| SOLICITOR FOR THE INTERVENER: | CA Williams Legal |
Orders
Pursuant to section 90AE of the Family Law Act 1975 (Cth) the wife and the husband are substituted as joint debtors of the intervener for the sum of $62,000 and the parties are to forthwith do all such acts and things as may be necessary to procure the payment of the intervener’s debt in the following manner:
a)within 30 days from the date of these Orders, the parties shall transfer the total sum held to their credit from the net sale proceeds of the property situate at and known as B property (“the B sale proceeds”) and
b)within 30 days from the date of the above payment, any outstanding balance owing to the intervener is to be paid by the parties in equal shares.
The parties are to charge their entitlement to the B sale proceeds with the obligation to repay to the intervener the sum referred to in Order 1 above.
The parties shall indemnify each other with respect to one half of the balance of the debt due to the intervener following the distribution of the B sale proceeds to the intervener.
The husband shall pay to the wife by way of property settlement the sum of $59,757 within 90 days from the date of these Orders.
In the event that the husband fails or refuses to make the payment to the wife referred to in Order 4 above within 90 days from the date of these Orders, he shall do all acts and things as may be necessary to procure the sale of the property situate at and known as R property, being the whole of the land comprised in Folio Identifier … (“the R property”) for the best price reasonably obtainable and for the purpose of the sale of the R property the following orders shall apply:
a)the husband shall submit the property to sale by auction and shall appoint such agent and such solicitor to act on the sale as he wishes
b)the husband shall nominate a reserve price and shall attend the auction for the purpose of negotiating with the highest bidder and signing any contract for sale
c)in the event that the property is not sold at auction, it shall be listed for sale by private treaty at the reserve specified for the auction
d)if within three months of such listing the property remains unsold, it shall again be submitted to auction with a reserve price set at five per cent lower than that set at the first auction
e)if the property is again not sold at auction, it shall again be submitted for sale by private treaty and subsequent auctions until sold with the provisions of these Orders shall mutatis mutandis apply to those sales
f)on the sale of the property, the proceeds of sale shall be applied in the following manner and priority:
i)in payment of the agent’s selling commission and expenses
ii)in payment of the legal costs of and incidental to the sale
iii)in payment to any mortgagee of the property the amount then necessary to discharge the mortgage
iv)in payment to the wife the sum of $59,757 by way of final property settlement and
v)in payment to the husband the balance then remaining.
Except as otherwise provided for in these Orders, the wife is declared as against the husband the legal and beneficial owner of any right, title and interest in and to all property and superannuation entitlements currently in her name, possession or control, including but not limited to her entitlement to the “Hurt on Duty” Police pension paid to her by State Super SAS Trustee Corporation.
Except as otherwise provided for in these Orders, the husband is declared as against the wife the legal and beneficial owner of any right, title and interest in and too all property and superannuation entitlements currently in his name, possession or control, including but not limited to:
a)the R property and
b)his shareholdings in the companies S Pty Limited (ACN …) and J Pty Limited (ACN …).
Except as otherwise provided for in these Orders, each party is solely responsible for any debts and liabilities in their name and shall indemnify and keep indemnified the other party from and against any actions or claims arising from such debts and liabilities.
The parties shall do all such acts and things as may be necessary to give effect to these Orders and in the event that either party refuses or neglects to execute any deed or instrument necessary for that purpose the Registrar of the Court is appointed pursuant to section 106A of the Act to execute such deed or instrument in the name of the said party and to do all acts and things necessary to give validity to the operation of the said deed or instrument and the Registrar is authorised to execute any such necessary instrument upon being satisfied by affidavit that the neglect or default as the case may be has occurred.
IT IS NOTED that publication of this judgment under the pseudonym Huxford & Skelly is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1669 of 2010
| Ms Huxford |
Applicant
And
| Mr Skelly |
Respondent
And
| Mr Preston |
Intervener
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between the parties to a marriage in which they seek orders altering their interests in property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings were commenced in March 2010 and were initially between the applicant, Ms Huxford (“the wife”), and the respondent, Mr Skelly (“the husband”). In April 2013, Mr Preston (“the intervener”) was granted leave to intervene in the proceedings.
The intervener claims to be a creditor of the wife and asserts that he is owed money which should have a priority claim on the assets of the parties prior to distribution. The intervener’s claim is brought under sections 90AE and 90AJ of the Act.
The husband and wife cohabited for a period of around five years (with periods of separation of roughly nine months within that time). There is one child of the relationship, M (“the child”), who is now six years of age. The parties each have children of previous relationships who resided with them throughout parts of their relationship.
This hearing was infested with discussions of white ants at the wife’s home in B, their appearance, what was required to make them disappear, who should pay for that and how much money should properly be allocated to that task. It is the Court’s view that the amount of money spent on the “white ant issue”, the renovations to that property and related matters was disproportionate to the totality of the funds available to the parties.
The Court notes that there is no evidence that these parties have since the beginning of this litigation been able to arrive at some commercial solution to their problems which would have left them with more dignity and a lot more money, and so the parties will have fought the fight and run the race but the trophy will be of comparatively little value.
Equally, a lot of time was spent trying to establish that there were recoverable sums of money due to the husband on loan account from his companies. There is common agreement that there are funds standing to the credit of the husband in loan accounts in these companies. What seems to have been missed is that the expert evidence and the evidence aliunde indicates that they were irrecoverable.
True, the wife sought (without having called the expert for cross-examination) to establish that they were or someday might be an asset in the hands of the husband. The attempt by Counsel to do so and to impugn the report of the expert on its source of information, no doubt on instruction from the client, in circumstances where the independent expert valuer was not tested was valiant but not persuasive.
The husband sought to make a significant claim to the wife’s Police “Hurt on Duty” pension. That is an amount to which the husband made no contribution and was the wife’s prior to the marriage. It was generally applied to the expenses of the household of the husband and the wife during cohabitation. The husband’s suggestion that it should be a part of the general pool of assets and not treated as part of a secondary pool was equally not an argument of merit.
In the clatter and din of the dispute between the parties they well might have cause to remember that much ado about relatively little usually produces relatively little in the way of a result.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1963. At the conclusion of the hearing he was aged 49 years.
The husband is a skilled tradesman. Prior to and during the relationship he operated an automotive services business through the companies S Pty Limited and J Pty Limited.
The wife was born in 1967. At the conclusion of the hearing she was aged 46 years.
The wife formerly served as an officer in the New South Wales Police Force but was medically discharged from that position following injuries sustained prior to her relationship with the husband. She commenced her current employment in the New South Wales public service in 2001.
The husband has two children of a prior relationship, namely:
a)L, born in 1991 and aged 21 years and
b)Y, born in 1995 and aged 18 years.
The wife also has two children of a prior relationship, namely:
a)T, born in 1993 and aged 20 years and
b)X, born in 1997 and aged 15 years.
In 1998, while serving as an officer of the NSW Police Force, the wife is said to have suffered injuries relevant to her eventual medical discharge from the Police and the “Hurt on Duty” pension which she receives.
In July 1998, the company S Pty Ltd was incorporated. The husband is the sole director and shareholder of the company which trades under the business name of “UU” from premises shared with J Pty Ltd. J Pty Ltd was incorporated in 2008 and the husband is a director and holds a 60 per cent shareholding. The premises in which the companies trade are owned by the husband’s father and located in south-eastern Sydney.
In 1999, the husband purchased a property at Suburb V (“the V property”) for the sum of $1,050,000.
In April 2004, the husband sold a property which he owned at Suburb G (“the G property”). The net sale proceeds of $567,386.74 were, he says, used to renovate the V property the following year.
In April 2004, the wife acquired a property at B (“the B property”) for the sum of $500,000 with the assistance of a mortgage in the sum of about $169,000. The remainder of the purchase price came from sale proceeds of a property which she previously owned at Suburb W (“the W property”).
The parties commenced cohabitation in August 2004. All four of their daughters lived with them initially.
In October 2004, the wife’s application for a “Hurt on Duty” pension and medical discharge from the NSW Police Force was determined. The wife’s infirmity is described as “major depression and a general anxiety disorder due to work related stresses”. The wife received a lump sum payment of arrears in the sum of $40,107 net and commenced to receive an indexed superannuation pension. The fortnightly rate of payment to the wife is presently $1,925.96.
In late 2005, the husband purchased a property in his sole name at
R (“the R property”) for $1,250,000. For much of the time that the parties cohabitated, they resided at the R property and the B property was rented out.
In February 2006, the parties separated for a period of around six months.
In July 2006, the husband sold the V property for $2,350,000. The proceeds of sale appear to have been applied as follows:
a)to Citigroup Pty Limited to discharge the mortgage of $1,458,998
b)in real estate agent commissions of $40,315 and
c)in payment to the husband of $634,341.
The parties resumed cohabitation in September 2006.
In late 2007, the parties’ child, M, was born. He is now six years old.
In April 2008, the parties married.
In January 2009, the husband’s children, L and Y, commenced to reside full-time with their mother. The wife’s daughters and M continued to reside with the parties.
In early to mid-2009, the parties separated for a short period of four to six weeks.
In August 2009, they separated on a final basis and the husband left the R property. The wife continued to have exclusive and rent-free occupation of the property until around August 2010, apart from one period of one month when she resided elsewhere.
In December 2009, an Apprehended Domestic Violence Order (ADVO) was made in the Local Court for the protection of the wife. At that time the husband placed the wife’s items of personalty in a storage unit. The husband was directed by the police to provide the keys to the wife for the storage unit but refused to do so. The wife contends that the husband retained her engagement ring which had been purchased for the sum of $15,000.
In March 2010, the wife commenced a relationship with the intervener. The intervener describes their relationship as one which was “on again – off again”. This is consistent with the wife’s description of the relationship.
On 18 March 2010, the wife filed an Initiating Application in this Court seeking orders for property settlement and in relation to parenting matters with respect to the child M. Since that time, a number of interim orders and directions have been made, including final parenting orders by consent.
On 6 July 2010, interim orders were made. In relation to property, the following orders are relevant to the final determination of this matter:
5. That pending further order:
5.1The husband shall pay to the solicitors for the wife
Dignan & Hanrahan on behalf of the wife the sum of $85,000 within 21 days.5.2The husband shall forthwith do all things as are necessary to transfer to the wife all his interest in:
5.2.1 The Kia motor vehicle in the wifes (sic) possession…
5.2.2 The … horse float.
6.That the payments and transfers provided for by way of order 5 herein are by way of partial property settlement in favour of the wife and that the parties agree that for the purposes of the proceedings that:
6.1 The Kia motor vehicle has a value of $21,000, and
6.2 The horse float has a value of $5000.
On 17 September 2010, parenting orders were made by consent. The effect of those orders was that:
a)the husband and wife would have equal shared parental responsibility for M and
b)M would live with the husband for four nights each fortnight and during school holiday periods as agreed, but otherwise live with the wife.
In or around early 2011, the wife and the intervener ceased their relationship. The wife asserts and it appears from the evidence that they remained friends for a period of time following the end of their relationship.
On 20 June 2011, the B property was “sold” for $515,000 however the sale did not settle due to a pest report which stated that the property was infested with termites. Repair and renovation works were subsequently undertaken to make the property safe and resalable. Notwithstanding that his relationship with the wife had ended, the intervener provided funds to her to assist in this process and he project-managed the renovation and repair works. The extent of the intervener’s financial support and involvement in relation to the B property is in issue and will be discussed and determined later in these reasons.
In July 2011, the husband’s property at Suburb P (“the P property”) was sold for $645,000. Orders were made on 5 July 2011 with respect to the distribution of the sale proceeds of the property. The orders had the effect that the husband was to apply the sale proceeds as follows:
a)discharge the mortgage against the property, together with any rates, levies, agents’ commission and legal fees associated with the sale
b)discharge the husband’s liability to his aunt, Ms Z, pursuant to a Deed of Loan made 26 July 2010
c)pay to his solicitors (to hold on trust) the sum of $59,000 for capital gains tax payable by the husband on the sale
d)pay to the husband by way of interim property settlement the sum of $100,000
e)pay to the wife by way of interim property settlement the sum of $13,000 and
f)pay the balance into a controlled monies account to be held on trust for the husband pending further orders.
On 18 August 2011, the following interim property order was made:
1.Of the sum of $58,000 held in the trust account of Messrs Spanko & Co. Solicitors an amount of $27,492 be paid to the wife for utilisation by her solely for the following purposes and not otherwise, namely to pay:
a.$11,314 in satisfaction of an outstanding debt for the rectification of the [B] property
b.$10,000 in satisfaction of an amount necessary to bring the [B] property up to a state fit for habitation by the wife and children
c.$4,860 in satisfaction of the cost for treatment of active termite infestation as per annexure “N” to the wife’s affidavit
d.$1,318 in payment for child care facility payments
and that the categorisation of that payment to her will be a matter for the trial judge on the hearing.
On 9 September 2011, the intervener was paid $21,314 pursuant to interim orders of the Court.
On 29 May 2012, orders were made by consent with the effect that the parties would sell the B property by public auction. In November that year, a further Court order was made setting the sale price for the property at $535,000 or such other sum as the parties may agree. The property eventually sold for that sum in December 2012. The net sale proceeds currently held by the conveyancer are in the sum of $55,758.
In February 2013, the intervener received approximately $20,000 by way of Court ordered interim payments for the work completed on the B property. The relevant Court order of 1 February 2013 was expressed as follows:
1.In addition to the agreed sum of $10,000 to be paid to Mr [Preston] from the monies held, a further sum of $10,000 is to be paid to him from those funds with the ultimate liability of the second $10,000 to be determined by the trial Judge on the hearing of the matter.
On 12 April 2013, leave was granted to the intervener to intervene in the proceedings.
The issues
The parties are at issue as to the value and identity of their assets and liabilities. This includes a disagreement between the parties as to the merits of the intervener’s claim, in addition to issues between them as to whether now
non-existent property should be “added back” against them.
The parties disagree as to how their superannuation interests should be treated and, in particular, whether the wife’s “Hurt on Duty” pension should be treated as an asset of the wife’s and included in the pool of property available for division between them. The husband proposes that this course be adopted and he seeks a superannuation splitting order in respect of that pension, which course the wife opposes.
The parties are at issue in relation to the extent of the property held by them at the commencement of cohabitation, including the value of such property, although those issues were somewhat reduced at trial.
The parties are in dispute as to the nature and value of their respective contributions, financial and otherwise, during the course of their cohabitation.
The parties disagree as to what adjustment, if any, and in whose favour such an adjustment should be made based upon a consideration of relevant matters under section 75(2).
The Orders sought
The wife set out her latest proposed orders in a Further Updated Case Outline document filed on 15 April 2013. She seeks orders to the following effect:
(Summarised; not reproduced as original)
1.That within 90 days the husband pays to the wife or her nominee such sum as secures to the wife an amount equivalent to 65% of the overall net assets of the parties, after deduction of the value of such other items of property as shall remain in the possession of the wife and/or be declared as the sole and absolute property of the wife.
2.In the event that the husband fails or refuses to pay the sum referred to above within 90 days, that the parties do all acts and things to effect the sale of the [R] property and that the proceeds of sale be applied as follows:
a)in discharge of the mortgage(s) presently encumbering the property
b)in discharge of any outstanding council and water rates
c)in payment of real estate agent’s commission arising from the sale
d)in payment of proper legal costs and expenses arising from the sale
e)in payment of all other expenses which may have been reasonably incurred in respect of such sale, including valuer's fees, if appropriate and
f)in payment of such sum from the net proceeds of sale as secures to the wife an amount equivalent to 65% of the overall net assets of the parties, after deduction of the value of such other items of property as shall remain in the possession of the wife and/or be declared as the sole and absolute property of the wife.
3.That the sale by auction of the [R] property be on the following terms:
a)the auctioneer shall be as agreed between the parties
b)the auction shall take place within a period of one month after the deadline date for sale by private treaty
c)the reserve price shall unless agreed upon by the parties be as proposed by the auctioneer and
d)the wife and husband shall each pay and be responsible for payment of one half of auction expenses payable before the property is auctioned.
4.In the event the [R] property is not sold by auction or by private negotiation within 14 days after the auction, that the wife and husband do all acts and things necessary (and the husband shall pay all monies necessary) to procure a second auction within a further five weeks upon the same terms and conditions as the first auction.
5.That the husband transfers the Kia … motor vehicle to the wife and that she be declared solely entitled to same.
6.That the wife retains and is declared as against the husband solely entitled to all property in her possession, custody and control.
7.That the husband retains and is declared solely entitled to his interest in [S] Pty Limited and [J] Pty Limited.
8.That the husband is responsible for the payment of all debts associated with or arising out of the operation of the companies/businesses, including any taxation liability, and that he indemnifies and keeps the wife indemnified in respect to the same.
9.That the husband pays the costs of the wife of and incidental to these proceedings.
The husband set out the orders which he seeks in an updated proposed Minute of Order filed on 15 April 2013. Those orders are as follows:
(Reproduced as original)
1.A declaration that the Wife has no interest in:
1.1The real property situate at and known as [R property]…;
1.2The funds held by the Husband’s solicitors in trust on behalf of the Husband;
1.3The company known as “[J] Pty Limited…;
1.4The company known as “[S] Pty Limited…; and
1.5All chattel items and property in the possession of the husband or registered in his name.
2.A declaration that the husband has no interest in any property in the possession of the wife.
3.The wife do all acts and things as may be required to transfer to the husband all of her right title and in interest in and to the balance of the sale proceeds of the real property situate at and known as [B property] and within 7 days of the date of these orders she shall do all acts and things and sign all such documents authorising and directing the conveyancer holding those funds to be paid to the husband.
3.(a) A base amount of THREE HUNDRED THOUSAND DOLLARS [$300,000] is allocated as required by s 90MT(4) of the Family Law Act 1975 to the husband from the wife’s interest in her SAS Trustee Corporation Member no. 623083 entitlements.
(b)In accordance with s 90MT(1)(a) of the Family Law Act 1975:
(i) the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii) the wife’s entitlement and the entitlement of such other person to whom a splittable amount may be made to payment out of the wife’s interest in SAS Trustee Corporation is correspondingly reduced; and
(iii) the trustee of the SAS Trustee Corporation shall do all such acts and things and sign all such documents as may be necessary to:
a)calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the wife created by clause 2(b) above of this order; and
b)pay the entitlement whenever the trustee makes a suitable payment out of the husband’s interest in the SAS Trustee Corporation.
(c)This order will have effect from the operative time and the operative time is the beginning of the fourth day on which a sealed copy of these orders is served upon the Trustee of
SAS Trustee Corporation.(d)After service of the payment split notice pursuant to
Rule 8A.03 of the Superannuation Industry (Supervision) Regulations 1994, husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising her request to Rule 7A.06(1) of the Superannuation Industry (Superannuation) Regulations 1994, for the rollover or transfer the transferable benefit out of the wife’s interest in the SAS Trustee Corporation to a fund of her choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994, at the cost of the husband.11.Except as provided by these orders the parties otherwise retain to the exclusion of the other party all property, chattel items, choses-in-action and all superannuation entitlements in their possession or registered in their sole names.
12.The wife pay the husband’s costs of and incidental to these proceedings
The intervener set out the final orders which he seeks in his written submission filed on 13 June 2013. Those orders are as follows:
(Reproduced as original)
1.The wife [debtor] is liable to pay $62,000.00 to the third party intervener [creditor] out of the wife’s property settlement pursuant to section 79 FLA.
2.The wife to pay the amount of $62,000.00 within 60 days from the date of Final Orders.
3.In the alternative, the wife and the husband is separately liable to pay the third party $62,000.00 in total, in percentage amounts determined by the Court, as part of the property division pursuant to section 79 FLA.
4.In the alternative, the wife and the husband pay the third party intervener within 60 days from the date of Final Orders.
5.The third party is seeking an order for the wife and the husband to pay equally the reasonable fees to cover the expenses incurred “as a necessary result of the order…” pursuant to s 90AJ (2) FLA. [Evidence of which can be provided by way of Affidavit.]
6.In the alternative, if the Court does not make an order for the reasonable expenses of the third party to be paid equally by the husband and the wife then the third party seeks to charge reasonable fees to cover reasonable expenses of the third party incurred as a necessary result of the order and that each of the parties to the marriage is separately liable to pay the third party an amount equal to half of those fees for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees pursuant to 90AJ (4) FLA. [Evidence of which can be provided by way of Affidavit.]
Property matters
Applicable law
The first step that the Court must undertake is to identify the property of the parties to the marriage or either of them available for division between them. In this case, the Court must at this stage consider the intervener’s claim, since it will potentially diminish the pool of assets available for distribution between the parties if allowed.
Having determined what is the property of the parties or either of them, the Court must consider whether, in the circumstances of the case, it is just and equitable to make orders altering their interests in their property: see Stanford v Stanford (2012) 293 ALR 70.
Once it is established that it is just and equitable to make orders for property settlement between the parties, the Court must then consider what is a just and equitable division of that property as between the parties, having regard to the contributions made by each of them as described in section 79(4) of the Act.
The Court must decide whether any further adjustment should be made in favour of one or other of the parties, having regard to any relevant matters in section 75(2) of the Act.
Finally, the Court must consider whether the result of the above determinations, taking all of those matters into account, is a just and equitable result.
The intervener’s claim
The Court firstly turns to consider the intervener’s claim, which is brought pursuant to Part VIIIAA of the Act, specifically section 90AE.
The intervener swore an affidavit in the proceedings, filed on 12 April 2013, and the Court made a ruling that so much of the affidavit that does not relate to the intervener’s claim for $62,000 would not be read.
The intervener is a skilled tradesman. He met and commenced a relationship with the wife in around March 2010. The intervener submits that it was an “on again – off again” relationship and that he wanted more from the relationship than the wife was prepared to give. This seemed to be supported by the wife’s evidence.
During the relationship, the wife resided at the B property and in other leased premises, save for one fortnight when she resided at the intervener’s house due to the poor condition of the B property.
The B property was to be sold in June 2011 for $515,000 but the sale did not settle due to there being a pest problem at the property. In his affidavit filed on 12 April 2013, the intervener deposes as follows in relation to that sale:
A buyer paid the deposit, but the sale fell through due to a negative pest report which said words to the effect that the house was infested with termites.
In June 2011, Mr K, a friend of the intervener’s, provided to the wife a quote for the repair work which in his opinion needed to be done. His estimate (exhibit 22 in these proceedings) of the repair costs was $189,200 inclusive of GST and was described in the following terms:
Estimation of costs to repair structural damage resulting from termite infestation, damage resulting from poor building practices during original construction (water entry at roof, lower walls & failure of bathroom membranes) and deterioration resulting from lack of maintenance.
Some remedial work was completed however the intervener submits that more than $140,000 worth of work was still required to be done to the property.
The intervener lent to the wife $26,508 to be paid to Mr K for emergency repair work. The intervener asserts that the payment was a loan not a gift. That is supported by the wife’s evidence and is evidence which the Court accepts.
In September 2011, the intervener was paid $21,314 pursuant to interim orders of the Court. He asserts that he used those funds to provide further loans to the wife. The wife conceded in her oral evidence that the intervener loaned her further money to pay outstanding bills. The Court accepts that evidence.
In around August 2012, the wife was informed that preparations were being made by Westpac Bank to repossess the B property. The intervener agreed to assist the wife by advancing funds to pay her mortgage payments, including arrears, on the promise that it would be repaid by her. The intervener paid the following sums to cover the B property mortgage repayments and arrears:
a)$5,635 on 22 August 2012
b)$5,635 on 24 September 2012 and
c)$6,100 on 26 October 2012.
In August 2012, the wife and the intervener had a discussion about how the intervener might recover the advances he had made by sale of the B property. It was agreed that the property should be renovated and sold to gain maximum profit. The intervener submits that “the profit would then be included in the matrimonial asset pool” and that he “was reliant on this money being repaid.” After the wife informed the intervener that she could not afford the renovation work, the intervener agreed to advance more funds to her for the renovations. The intervener submits that he offered his “financial assistance and business expertise, as a commercial arrangement, pursuant to a verbal agreement… that the debt would be repaid in full by the wife.”
The repairs and renovations to the B property commenced in August 2012. In accordance with the agreement, the intervener arranged the work to be done for the wife and took on the role as project manager. He paid subcontractors to do much of the work and asserts that the rates charged were reduced rates. In her oral evidence, the wife conceded that the intervener did the work cheaply.
In December 2012, the property sold for $535,000.
In January 2013, the intervener asked the wife to repay him in full by drawing down from her superannuation fund. The wife refused to do so. In February 2013, the intervener received $20,905.55 by way of an interim order of the Court as part payment for the work completed on the B property.
The intervener asserts that the amount still owed to him is $62,000. He sets out details of how that figure was reached in his affidavit material and this is summarised in his written submission as follows:
(reproduced as original)
i. Material an (sic) subcontractors component: $44,885.18
ii. Labour component: $19,922.00
iii. WBC Mortgage repayments $17,370.00
1. Total: $82,177.68
b. Payment on the 9 September 2011 [$21,314.00]
Mr [Preston’s] debt was not reduced by this amount
as he subsequently reloaned the money to the
wife to repay some of her outstanding debts as
provided in oral evidence by the wife and Mr [Preston].c. Less payment received on 20 February 2013 $20,905.55
Total debt owed: $61,271.73
Rounded up: $62,000.00
The wife has conceded in her oral evidence and in her submissions that the sum of approximately $62,000 is owed to the intervener. The husband has reluctantly conceded that he has benefited from the intervener’s work. He submits, however, that any funds advanced by the intervener were advanced “because he was in love with Ms [Huxford] and he believed they were in a relationship.” The Court does not agree with that submission.
The intervener impressed the Court as an honest witness and a man who had assisted the wife at a time of need on the clear understanding that he was to be repaid on sale of the property. The price of the work that was done is supported by the original quote of Mr K.
There was no effective challenge to the value of the work done, although some attempt was made in that regard. The Court finds that the husband also benefited from the intervener’s payment of the mortgage repayments and arrears to avoid a mortgagee sale. It seems to the Court that the sum should be repaid and should be a charge on the proceeds of sale of the B property.
Unfortunately, the net proceeds of sale of the B property do not allow him to be paid in full. The Court is satisfied, however, that the amount due accrued a benefit to each of the husband and the wife in that it prevented a mortgagee’s sale and rendered the property capable of being sold at the price for which it was eventually sold. Given the poor condition of the property, the failure of the prior sale and the work required to be done to it, the intervener’s work alleviated what was probably set to be significantly greater loss to the parties.
The Court proposes to include the sum due to the intervener in the balance sheet. In addition, it seems clear that the sum should be charged against the proceeds of sale of the property, which are not likely to have been realised but for the work done by the intervener on the basis of his agreement with the wife being honoured.
The Court intends to make orders as to the payment of the sum to the intervener and, to the extent that it is unable to be paid from the sum held, it will require the parties to pay any balance in equal shares.
The balance sheet
The balance sheet set out hereunder is based on a balance sheet that was prepared based on earlier versions of the balance sheet presented by the parties to the Court. It incorporates submissions, concessions and updating information provided by Counsel for each of the parties at the hearing in April 2013.
This version of the balance sheet was provided to the parties in hard copy at the hearing and was also emailed to the parties.
ASSETS Item O/ship Description AW’s value RH’s value 1 RH [R Property] 1,050,000 950,000 2 RH Controlled monies account from sale of [P Property]
26,310
26,3103 AW [B Property] total net proceeds 21,02255,758 4 RH [S] PL T/A [UU] (per [MS Firm] [EXH 35])
NK
-5 RH Loan from RH | [S] PL from Financial Accts FYE 30.06.2011
14,922
-6 RH [J] PL shares (per [MS Firm]) NK NIL 7 RH Loan from RH | [J] PL debt to RH from Financial Accts FYE 30.06.2011
99,463
NIL8 AW KIA … Car 5,00021,000 9 AW Proceeds of sale of Nissan [Car] [Sold to W’s mother]
NIL
10,00010AWCamper trailer [Subject of Addback so out here]Addbacks6,00011 AW … Horse float 2,0005,000 12 RH … Motor bike (insurance payout $15,000 in 2010)
15,000
7,00013 RH Honda Motor Cycle 6,000 - 14 RH Tractor & Equipment 12,000 6,000 15AWCamper trailer [Duplication]-6,00016 RH Furniture 10,000 Not valued 17 AW Furniture - NK 18 AW Horses 2,300 NK 19 AW Saddlery & horse accessories 15,000 20 AW IAG Shares [ 755766] @ $5.71 as at 01.04.2013
4,311
-21AWShares-2,50022 AW Bank Accounts CBA and Westpac [2 Accts] NIL - 23 RH Bank Accounts NK - 24 RH Jewellery & Personal Effects 2,000 2,000 25 AW Jewellery & Personal Effects - 20,000 26 AW Cash & Savings - NK 26A RH New BMW 7,000 7,000 TOTAL 1,242,0181,132,568ADD BACKS Item O/ship Description AW’s value RH’s value 27 RH RH has drawn on mortgage subsequent to separation and retained funds totalling not less than
216,981
-28RHBalance of funds received on sale of [P]100,000-28 RH Proceeds sale [P Property] – Order 05.07.2011 100,000 100,000 29RHSale proceeds re [P] (… Property) in CMA
118,935
-30 AW Payment to AW pursuant to Orders 06.07.2010 (acknowledged by AW)
85,000
85,00031 AW Payment AW to 05.07.2011 13,000 13,000 32 AW Payment to AW 18.08.2011 (acknowledged by AW)
27,492
27,49233 RH Paid legal fees 100,000 100,000 34 AW Paid legal fees [$113,300] - NK 35 AW Superannuation withdrawal post separation 124,588 124,588 36AWAW’s Westpac mortgage arrears paid from the sale proceeds of [P]
13,000
-37 RH KIA [car] purchased for daughter for $6,000 but sold for $4,000
4,000
3,000TOTAL 452,916450,080LIABILITIES Item O/ship Description AW’s value RH’s value 38 RH Westpac Mortgage [R Property] [AW challenges] 775,174 775,174 39 AW [D] College – School Fees for [X] 3,383 - 40 AW … Credit Union debt consolidation loan 14,050 NK 41 AW … Credit Union debt 11,000 NK 42 AW Nissan Finance loan relating to daughter, [T’s] motor vehicle – Nissan … transferred to AW’s mother
2,364
NK43 RH Loan [Ms Z] [RH asserts this is ‘secured against [R Property]’]
NK
180,00044 RH Loan from [Mr and Mrs Skelly Snr] - 24,000 45 AW Woolworths Credit Card 5,120 46 RH Westpac VISA NIL 21,042 47 RH Citibank VISA NIL 17,460 48 RH GO Mastercard NIL 7,791 49 RH 60% share in [J] PL – net equity position
-
152,08150 RH [S] PL – net equity position - 37,313 51 AW Loan AW’s mother, [Ms E] (less $10,000 paid from transfer of Nissan … to her)
29,233
-52 AW Unpaid portion of [Mr Preston] [B] Building Claim
62,315
Not admitted53AWClaim for mortgage instalments by [Mr Preston]
-Not admitted54 RH ATO (Personal Income Tax) - TBA 55 RH ATP (Company Tax [Directors Penalty Notice])
-
TBA56 RH Accountants fees - 7,000 TOTAL 902,6381,221,861
SUPERANNUATION Item Member Fund and interest AW’s value RH’s value 57 AW First State Super (…) – Accumulation Benefit (as at about 00.12.2000)
19,057
-58 RH Colonial Super NK 624 59 RH Australian Super [AW adopts RH figure but subject to document production)
15,085
15,08560 AW First State (Police) - 947,396 TOTAL 34,142 963,105 FINANCIAL RESOURCES Item Control Description AW’s value RH’s value 61 AW Hurt on Duty Pension - - TOTAL - - 62 Total property 1,242,018 1,132,568 63 Total add backs 452,916 450,080 64 Total liabilities 902,638 1,221,861 65 Total superannuation 34,142 963,105 66 Total resources - - TOTAL net asset pool 826,438 1,323,892
I now turn to consider particular issues arising on the balance sheet.
Assets
The first issue arising on the balance sheet is the value of the R property (item 1). This was but a small issue in the end, given the marginal difference between the parties’ values. Once that was pointed out at the hearing, together with the usual acceptable margin of error in valuations, the Court was informed that the parties agreed the value should be $1,000,000.
Item 2 was agreed at $26,310 at the date of hearing.
Item 3 was agreed at $55,758 at the date of hearing.
The parties disagreed as to the value of S Pty Ltd (item 4) which ceased trading as at 30 June 2012. Notwithstanding the expert valuation report, which said its shares had no value, the wife contended that the company had some value. The issue is difficult to resolve. The expert relied on figures produced to the financial year ending 2010 and it relies upon the husband and his sources of information. Having criticised the expert valuation report, the wife offers nothing other than a general assertion in effect that the Court should disregard the valuation. What then would the Court substitute for it, the Court asks rhetorically? It is the only qualified evidence of value.
It appears that even after the expert valuation report was made the husband was lending this company money to “prop it up”. The wife sought to have the Court conclude that the amount owed by the company to the husband was recoverable (item 5). The amount so claimed is the subject of dispute and the figures in evidence are in fact those of the company some three years ago, with the evidence supporting nothing other than the company needed continual “propping up” by the husband.
Mr P, who prepared the expert valuation report, spoke of the loans to the husband being partly irrecoverable at the time of the report. The Court takes the view that it is more probable than not that his assertion was then correct. He was not cross-examined. The Court will accept the view expressed in the expert valuation report that an amount of $12,872 was on the evidence recoverable at that time, however, the company’s balance sheet as at the end of the 2012 financial year showed that it had no capacity to pay any loan. On that basis, the Court will regard the amount as irrecoverable.
The wife sought diligently through her Counsel to propose that the husband’s accounting was in parlous state. It might not be pushing it too far to suggest that they did not believe his statements as to the position of the company. They point clearly to confusion and less than felicitous bookkeeping. The wife points to the companies as being the likely source of the capacity of the husband to repay debt. It seems, however, that this is a case in which the husband perhaps imprudently continued to borrow to meet his obligations.
The Court notes that, in relation to the lack of financial information and formality of accounts, this is not in its experience an uncommon problem of corporations closely held like this one. That is not to excuse the husband but simply to state that his assertions as to the way in which his accounts were kept is believable.
The Court accepts that there has, for reasons given by the husband, been a lack of complete disclosure. All the Court can do when faced with a lack of disclosure is treat the matter robustly and perhaps draw an adverse inference if there is material on which the adverse inference can be based. There has to be, however, some reasonable basis for pointing to an asset which the Court can reasonably assume exists. The Court cannot drag a figure out of the air and say that is a figure it should allocate to non-disclosed assets.
With respect to item 6, the husband asserts that the shares in the company
J Pty Ltd are of no value; the wife asserts that they have a value which is unknown. In relation to the wife’s assertion as to value, she directs the Court to the most recent Profit and Loss Statement for J Pty Ltd, which was for the 2011 financial year and which is contained in exhibit 40. She otherwise repeats the submissions made by her in relation to S Pty Ltd.
The Court does not see how the figures contained in exhibit 40 (which show a negative net income and a negative net equity for that year) challenge the findings in the expert valuation report that the company has a value of nil. The Court will, for the same reasons as above and based on what was contained in the expert valuation report, regard the value of the husband’s shareholding in
J Pty Ltd for the purpose of the balance sheet as having no value. That does not mean that the Court will not regard the corporate structure as a resource of the husband with an indeterminate value.
The parties are also at issue as to the value of the husband’s loan account with J Pty Ltd (item 7). The husband submits that, while as at 30 June 2012 the company owed the husband $152,081, this item should have a nil value as the company has not funds with which to repay the husband. The wife submits in response that the assertion that the amount is not recoverable is “a complete affront to the Court.” She otherwise repeats the submissions she made with respect to item 5.
The husband asserts that the above figure was at another time and that the figure in the balance sheet for the financial year ending June 2012 was $37,313. The husband points to the fact that the company J Pty Ltd is owed $43,090 by S Pty Ltd and that company is not trading and has no assets. The 2012 figures show for the company an excess of liabilities over assets of $159,403. The Court accepts that evidence is probably correct and will adopt a nil value for the loan account.
The Court in exercising its discretion under section 75(2)(o) will take into account that the husband may have a financial resource of an indeterminate value in the company structures in which he has an interest, however, for the purpose of the balance sheet, the Court will adopt the value of the husband’s interest in the companies at nil and give the like value to the loan accounts.
With respect to the Kia motor vehicle (item 8), the parties were at issue as to its value but in the course of the proceedings agreed a value of $21,000.
In relation to the Nissan motor vehicle (item 9), this was sold by the wife to her mother for the sum of $10,000 and the proceeds benefited the wife. The Court will remove the item from the balance sheet as an asset but will in its considerations under section 75(2)(o) take into account that the wife received the benefit of the $10,000 sale proceeds.
The parties agreed to remove the camper trailer (item 10) from the balance sheet.
The parties agreed as to the value of the horse float (item 11) at $5,000.
A motorbike formerly owned by the husband (item 12) was the subject of an insurance payout in the sum of $15,000 and a portion of those proceeds were used to purchase the husband’s present motorbike (item 26A), which has an agreed value of $7,000. It is noted that the balance of the insurance proceeds are not accounted for. The Court will not include in the balance sheet items which do not exist and it does not propose to do so with the $8,000 insurance proceeds which have been otherwise applied. That is not to say, however, that the Court will ignore them. It will take into account that the husband received $15,000 and utilised it in part to purchase a new motor bike for $7,000. The Court will in its consideration of relevant factors under section 75(2) take into account the insurance claim proceeds otherwise utilised by the husband.
Item 13 is a Honda motorbike which the husband sold. His evidence is that he applied the proceeds of sale to the purchase of furniture which is otherwise included in the balance sheet (albeit of indeterminate value). The Court accepts his evidence and the item will be removed from the balance sheet.
The parties agreed that the value of the husband’s tractor and equipment (item 14) is $6,000.
The parties agreed that item 15 could be removed.
Furniture in the parties’ respective possession (items 16 and 17) has not been valued. The Court will take into account that each party has furniture in their possession but, apart from that, the Court is not in a position to ascribe any value to those items and they will therefore be removed from the balance sheet.
With respect to the wife’s horses (item 18), the only valuation is the wife’s asserted value of $2,300, which is accepted by the husband. That value will be included.
There is no valuation for the wife’s saddlery and horse accessories (item 19) and the husband makes no submission on this item. The wife submits that the item should be removed because there is no expert valuation or agreement. The Court proposes to remove this item but it will take into account that the wife owns this property when it considers matters under section 75(2).
The wife’s IAG shares (item 20) were re-valued by agreement at $4,373.86 (this will be rounded up to $4,374).
It was agreed that the wife’s shares (item 21) could be removed from the balance sheet.
Items 22 and 23 are bank accounts of the wife and the husband respectively. At the hearing in April 2013, the parties were requested to provide current statements for those accounts. Those statements were not forthcoming when the hearing recommenced in May 2013. It appears to the Court that on the evidence the credit standing in the accounts of the wife is either nil or de minimis and therefore item 22 will be removed.
The husband makes the following submission in relation to his bank accounts:
Of the $16,864 that the husband has, his evidence is that he has $14,543 in one account which is what he has left from the $80,000 loaned to him by his Aunt.
In support of the above submission, reference is made to paragraph 13 of the husband’s affidavit filed on 15 April 2013, which sets out the husband’s assertions as to the various bank accounts in his name and how those accounts are used by him. It is the Court’s view that the $16,864 conceded by the husband to be held in one of his accounts should be included as an asset in his name but that his bank accounts should otherwise be disregarded. The Court accepts the husband’s evidence that $14,543 of those funds is part of the loan from his aunt and, given that it has been included as an asset here, that portion of the loan to his aunt will be included as a liability on the balance sheet.
With respect to the parties’ jewellery and personal effects (items 24 and 25), the husband conceded that there is no valuation for the wife’s jewellery and that it can be excluded from the balance sheet. The wife seeks that it be excluded on the same basis. The husband conceded that his jewellery has a value of $2,000 but submits that, if the wife’s jewellery is excluded on the basis that there is no evidence of its value, it would be unfair to include his jewellery. The Court finds that it cannot include the wife’s jewellery as there is no evidence of value, however, given that the husband has made a concession about his jewellery, it should be included.
The wife submits that she has no cash and savings and, based on the evidence before it, the Court agrees with that submission.
Item 26A has been discussed above and the husband’s motorbike valued at $7,000 has been included as an asset.
Add backs
Items 27 to 37 relate to non-existent “assets” sometimes referred to as notional property. This Court does not consider that it has the power to alter the interests of parties in non-existent property and has some support for that view in the decision of the Full Court in Bevan & Bevan [2013] FamCAFC 116.
That is not to say that the source and application of funds listed at those items is irrelevant and cannot be taken into account in the Court’s consideration of matters under section 75(2), in particular section 75(2)(o), or in its consideration of the contributions made by the parties and giving effect to those considerations as is required to be done by section 79(4) of the Act in determining a just and equitable result.
That process is not an accounting exercise but rather the exercise of a judicial discretion, having taken into account and balanced all those matters required to be taken into account under the provisions of the Act.
Liabilities
As to the mortgage over the R property (item 38), the amount is agreed on the balance sheet at $775,174. Notwithstanding that agreement, the wife submits that an amount of $216,981 (which corresponds to the proposed add back at item 27) should be deducted from that figure to account for funds utilised by the husband post separation by drawing down on the mortgage. The Court notes that in response to the wife’s assertions, the husband submits that the mortgage over the B property went up post separation and that the wife has not disclosed details of how funds drawn down by her were utilised.
The Court proposes to include the mortgage liability with a value of $775,174. The Act makes no distinction in relation to contributions made pre- and post-separation. It is also clear that to the extent that those contributions might be funded by borrowing, the liability for the funding must also be taken into account. That is consistent with the wife’s argument that the debt to Mr Preston should be taken into account and the Court’s decision to do so on the basis that it was a loan referable to a contribution.
The amount which the husband drew down on the line of credit to pay the mortgage and to support the business was also a borrowing referable to a contribution, and as the property to which it was contributed is taken into account so also must the liability.
Both parties agreed that item 39 should be removed from the balance sheet.
With respect to the Credit Union debt consolidation (item 40), the wife submits that it be included as a liability “given that it falls within the case law cited as reasonable expenditure and also has its origins in debt existing at the time of separation.” She repeats that submission with respect to the Credit Union debt (item 41). The husband submits that the debts were incurred post separation and that no such debts were disclosed by the wife in 2009.
Each party asserts that they have credit card debts which were extant at the time of separation but which have also been utilised for reasonable living expenses since separation. In the absence of updated credit card statements, the Court is unable to determine that the debts as they stood at the date of hearing were equal in quantum to the debts that existed at the date of separation. In the absence of evidence on which it can make findings as to those debts, the Court does not propose to include them on the balance sheet. It will, however, take into account that both parties owe money on credit cards in its consideration of the financial positions of the parties under section 75(2).
With respect to item 42, the husband submits that the wife borrowed funds post separation to buy a car for her daughter, which she then gave to her mother. The husband further submits that the asserted “loans” due to the wife’s mother should be reduced by virtue of the car having been given to her. The wife submits that the item should be removed. The Court does not intend to include it as a liability of the wife’s.
As to the husband’s asserted loan from his aunt, Ms Z (item 43), the wife submits that if this was ultimately used to pay legal costs then it should be excluded from the balance sheet. The Court agrees with that submission. The husband concedes that $100,000 of the $180,000 loan from his aunt was used for his legal costs. That amount will, therefore, not be included as a liability. He submits that the balance was used for personal and business expenses, at least $30,000 for the latter. He also submits that the $14,543 held to his credit in a Westpac bank account (discussed above and included as an asset) is the remainder of that loan from his aunt.
As discussed above, the Court will include the sum of $14,543 as a liability to the husband’s aunt given those funds have been taken into account as an asset of the husband’s but in fact are borrowed funds. The Court accepts the husband’s evidence, of the portion of the loan not spent on legal fees, around $30,000 was applied to his business expenses. In the Court’s view, those funds should also be included as a liability given that the husband’s companies are included as assets (albeit of nil value) in the balance sheet.
With respect to the husband’s loan from the his parents (item 44), the husband submits that the funds were deposited into his Westpac Classic Plus account and then applied to the reduction of his line of credit account. The husband asserts that the sum of $24,000 should be included as a liability on the balance sheet, notwithstanding that the funds were borrowed post separation. The Court accepts the husband’s evidence that those funds were used to reduce matrimonial debt and will therefore include the sum as a debt.
The Court notes the wife’s assertion that a portion of the funds was used for the husband’s legal costs arising from the ADVO proceedings and, further, that a portion was used to pay a tax liability of J Pty Ltd. The Court does not find that the wife’s submission with respect to the funds being used for the ADVO proceedings is supported by the evidence. With respect to her assertion that the borrowed funds were in part used to pay a liability of J Pty Ltd (which has been included on the balance sheet, albeit at a nil value), in the Court’s view this would be reason to include any borrowing for that purpose as a liability.
The wife’s submission with respect to her Woolworths credit card (item 45) is that it should be removed because there is no documentary evidence that the debt existed at the date of separation. This is in agreement with the husband’s submission. Accordingly, the Court does not propose to include this item.
With respect to the husband’s credit cards (items 46 to 48), the wife submits as follows:
… these sums claimed as liabilities should be completely disregarded as all of the monies owing to these credit card providers in respect of relative debt owing as at or about the date of separation was provisioned for and paid out of matrimonial monies earlier in the proceedings.
The husband provided details of how his various credit cards were used in documents annexed to his affidavit filed on 15 April 2013. His Counsel also tendered statements of these credit cards, which were marked as exhibits towards the conclusion of the hearing. The husband submits that his credit card debts should be included and says as follows in respect of each of them:
a)Westpac Visa card: the husband asserts that this card existed at separation and the current balance of $21,042 should be included because of the manner in which the husband “blended his finances” and because this card was used to “put back into his Westpac Classic account, the Line of Credit and businesses.”
b)Citibank card: the husband submits that the amount owing on this card can be reduced to $13,529 but should be included because the card existed at separation and, while used largely for personal expenses, it was necessary for the husband to use it because he was responsible for managing matrimonial debt and consequently was often short of funds.
c)GO Mastercard: the husband asserts that this card existed at separation and the debt of $7,791 should be included for similar reasons to the above. The Court notes that exhibit 102 is a printout of an account summary for this account dated 23 January 2012, which shows that the account at that date had a debit balance of $5,668.
The Court does not intend to include the husband’s credit cards on the balance sheet. It cannot be certain of whether or not the debts that are said to have existed at the date of hearing are equal in quantum to those debts at the date of separation. Further, it cannot be certain in the husband’s case of precisely which portion of the asserted debts are attributable to personal expenses, business expenses or debt reduction in the post-separation period.
Items 49 and 50, the husband conceded in his written submissions that the value of these items should be nil.
With respect to the wife’s loan from her mother (item 51) in the sum of $29,233, the wife submits as follows:
[The wife’s mother] was subjected to cross examination in respect of amounts she swears were advanced by her to her daughter, the applicant wife and it is submitted that the Court would accept her as a witness of truth and bring this debt in as an outstanding liability…
The husband submits that the amount should not be included on the basis that the funds were borrowed post separation. Further, the husband submits that the Court should not accept that these funds constitute “loans” or that the wife has any obligation or intention to repay her mother. In support of his submission, the husband referred the Court to a Statutory Declaration signed by the wife’s mother in 2002, following property settlement proceedings between the wife and her former husband. That declaration reads as follows:
The amount of $50,000 referred to in the settlement agreement of
[the former husband] and [Ms Huxford] is not required to be repaid to me by [Ms Huxford].It was required to be included as part of the settlement of property between my daughter [Ms Huxford] and her husband however, I do not require [Ms Huxford] to repay that amount.
From a review of the cross-examination of the wife’s mother, it appears to the Court that she has provided financial support in various forms to the wife over the years and that, while the wife may have wished to and intended to repay the funds, her mother has not demanded that she do so. It seems probable to the Court that there is little likelihood that the wife will have to repay the sum of $29,233 to her mother.
Item 52 represents the claim of the intervener for outstanding monies owed with respect to repair and renovation work carried out at the B property. This issue has been discussed above and the Court has determined that the sum of $62,000 will be included on the balance sheet as a joint liability of the parties to the intervener.
Item 54 was not the subject of further submission by the husband, but the sum of $40,332 was included in a balance sheet annexed to the husband’s written submission with the following note: “Capital gains tax debt incurred for the 2010/2011 financial year due to the sale of the [P Property]”. The wife submits that item 54 (which she refers to as the “ATO Personal Income Tax of the respondent husband”) must be excluded on the basis that, if it were brought into the balance sheet as a tax liability of the husband’s, so too should the wife’s tax liabilities post separation be brought in. The Court finds as follows.
The question of the husband’s capital gains tax (CGT) liability arising from sale of the P property was raised shortly after the sale. The Court made an order on 5 July 2011 that, from the sale proceeds of the property, the husband was to pay to his solicitors to hold on trust the sum of $59,000 in respect of the CGT payable by him. On 29 May 2012, a further order was made in the following terms:
3.Prior injunctive orders are varied to permit the funds held on behalf of the husband in the trust account of Solon Lawyers to be applied to the tax liability in the sum of $40,332.15 to the Commissioner of Taxation but the operation of this Order is stayed for a period of 21 days to enable an application to be brought by the wife for an order that this Order be dissolved.
No such application to dissolve the order was brought by the wife. The husband was questioned on his payment of CGT arising from the sale of the P property during cross-examination at the hearing in May 2013. He was uncertain of what the final amount was and when it was paid, but he confirmed that he had paid it. Accordingly, the liability is extinguished and it will be removed from balance sheet.
With respect to item 55, the husband submitted as follows:
The husband has now received notification from the ATO that he will now be required to pay the sum of $46,470 that [S Pty Ltd] owes to the ATO but which the company is unable to pay.
The wife submits that this is not an agreed liability and that it should not be included on the balance sheet. She takes the position that if this liability is included, so too should the wife’s taxation payments post separation. Without there being evidence of the notice from the ATO which the husband asserts he has “now received”, the Court is unable to conclude that the husband will, as he says, be held liable for the company’s tax debt. The item will therefore not be included in the balance sheet.
The husband did not make a submission specifically addressing his asserted debt to his accountants (item 56), however, in the balance sheet annexed to his written submissions the figure was reduced to $2,765. The wife submits that the amount should not be included because, inter alia, it relates to an expense of the companies. At the hearing in May 2013, an invoice was tendered and marked exhibit 101. This invoice shows that S Pty Ltd owed $2,728 for professional services to DA Firm as at 20 March 2013. Based on that evidence, the Court will include this item as a liability of the husband’s in the sum shown on the invoice, given that the company has been included as an asset (albeit at a nil value) in the balance sheet.
Based on all of the above, the Court finds the assets and liabilities of the parties not including superannuation are as follows:
Assets ($) R property (h) 1,000,000 Balance of sale proceeds of P property (h) 26,310 Net sale proceeds of B property (w) 55,758 S Pty Ltd (h) 0 S Pty Ltd (loan from husband) (h) 0 J Pty Ltd (h) 0 J Pty Ltd (loan from husband) (h) 0 Kia motor vehicle (w) 21,000 Horse float (w) 5,000 Motor bike (formerly item 26A) (h) 7,000 Tractor and equipment (h) 6,000 Furniture of indeterminate value (h) 0 Furniture of indeterminate value (w) 0 Horses (w) 2,300 IAG shares (w) 4,374 Funds in husband’s bank account (h) 16,864 Jewellery (concession against interest by husband) (h) 2,000 Total assets (excluding superannuation)
$,1,146,606
Liabilities ($) Amount due to the intervener (joint) 62,000 Mortgage on R property (h) 775,174 Loan from Ms Z (h) 44,543 Loan from husband’s parents (h) 24,000 Net equity position in J Pty Ltd(h) 0 Net equity position in S Pty Ltd(h) 0 Accountants’ fees for S Pty Ltd (h) 2,728 Total liabilities
$908,445
Total net assets (excluding superannuation)
$238,161
Superannuation
This is a case where the nature of the parties’ superannuation assets, their origin and the contributions made to them are such that it is appropriate for them to be dealt with as a separate pool and that they be considered on an asset-by-asset basis. The parties’ superannuation entitlements (at least in so far as the value of those interests are agreed by the parties) are:
Assets ($) 57 W First State Super (…) – Accumulation Benefit 19,057 58 H Colonial Super 624 59 H Australian Super 15,085 60 W First State (Police) Not agreed
It is noted that the wife made no contribution in a direct sense to any of the superannuation funds of the husband listed at items 58 and 59. There is no evidence that the husband made any direct contribution to the superannuation funds of the wife listed at item 57. The Court intends, therefore, to make orders such that the parties will each retain the superannuation interests presently held in their own name. The difference in those interests is $3,348.
The Court finds that the wife’s First State Police pension (her “Hurt on Duty pension”), the value and treatment of which is not agreed, warrants separate consideration.
This is a pension which the wife receives in respect of personal injury which occurred during the course of her employment with the NSW Police Force prior to the marriage. In her Financial Statement filed on 1 February 2013, the wife states that it produces a continuing stream of income at the rate of $1,925.96 per fortnight ($50,075 per annum).
The wife submits that the pension should be treated separately to other assets and that no adjustment should be made to it, as “no contribution whatsoever” was made to it by the husband. The husband agrees that he did not contribute to then pension yet he seeks a superannuation splitting order in respect of it. He submits that quarantining the wife’s Hurt on Duty pension is inappropriate on the basis that the wife did not contribute to property which the husband brought into the relationship, yet has benefited from its inclusion in the balance sheet.
The wife submits that any splittable payment made from the wife’s pension would “severely diminish” the income of the wife “who was awarded these monies for medical reasons which are in evidence and conceded.” She further submits as follows:
The respondent husband provides no calculation of any diminished pension that would accrue as a result of such adjustment by splitting off.
Having regard to the nature of the pension, the lack of the husband’s contribution to it and the fact that its continuation in its present form is not guaranteed (in the event that there is a favourable change in the capacity of the wife to fulfil her occupation), it is not in the Court’s view appropriate to make any allowance to the husband in respect of it.
There is no evidence that the injury sustained by the wife, being the reason why the pension is paid to her, has abated. The appropriate course for the Court to adopt is to take it into account as an income stream of the wife in its considerations under section 75(2), which the Court will do.
Otherwise, having regard to the matters referred to above, the Court will make orders leaving the parties’ superannuation interests in the hands of the person whose expectation it is. The fact that each party has those expectations will be taken into account in the Court’s consideration of matters under section 75(2).
Whether the parties’ property interests should be altered
The parties were in a relationship of cohabitation for approximately five years (minus periods of separation totalling around nine months) but they are now separated. The consortium vitae is at an end.
The mutuality that was attendant upon the parties including fiscal unity and
co-operation no longer exists and there will be no common use of property.
The parties have no agreement as to how their property should be held having regard to these events. The present arrangements for the ownership of their property are not sufficient for their purposes upon the breakdown of their marriage and they each ask the Court to make orders altering those interests.
In the circumstances, the Court finds that it is just and equitable to make orders adjusting the property interests of these parties, including their interests in superannuation.
Section 79(4) contributions
Initial contributions of the wife
At the commencement of cohabitation the wife contributed the following:
a)the B property (purchased in March 2004 for $500,000) subject to a mortgage of $170,000 and
b)an arrears payment of her pension payable by way of lump sum after tax paid in October 2004 ($40,107).
The husband contends that the wife’s mortgage over the B property had increased to $200,000 by the time cohabitation commenced. He also asserts that the wife had a Hyundai motor vehicle which was the subject of a hire purchase debt. He asserts that she purchased the vehicle in February 2004 for between $32,000 and $34,000 and that she was paying $594 per month on the contract. The husband further asserts that the wife had some credit card liabilities standing in her name at the commencement of cohabitation.
The Court finds that the wife contributed equity to the value of approximately $370,000 and notes her assertion that she applied her lump sum pension payment for the benefit of the family.
The Court notes that the wife’s “Hurt on Duty” injuries were sustained prior to the commencement of her relationship, however, she did not start receiving her fortnightly pension payments until October 2004. The Court notes that the wife submits as follows in relation to her pension:
Were the Court to treat the First State (Police) Superannuation entitlements of the applicant wife as the respondent husband appears to contend for, it would have to be recognised as a substantial contribution to be added to the above that the applicant wife had at the date of commencement of cohabitation. The manner it is sought to be treated by the applicant wife does not call for such a calculation.
The Court has determined that it will not treat the wife’s pension in the manner proposed by the husband and, as such, there is no need to compute it into a lump sum for the purpose of assessing its value as an initial contribution. It will be treated as a contribution by way of income during the relationship.
Initial contributions of the husband
The husband asserts that he had net assets exceeding $1,000,000 at the commencement of cohabitation. Those assets comprised:
a)his equity in the P property
b)his equity in the V property
c)a Honda motorbike
d)a half share in a boat
e)household contents of indeterminate value
f)his interest in S Pty Ltd (together with a loan account with S Pty Ltd) and
g)a Citicorp account of $300,000.
The wife asserts that a substantive issue exists as to the husband holding $300,000 in a term deposit style account at the commencement of cohabitation.
The Court finds that, while both parties brought assets of some value to the relationship, the husband’s initial contributions significantly outweighed those of the wife.
Contributions to date of separation
During the period of cohabitation, the wife continued to bring in her fortnightly pension entitlements and income from her part-time employment as public servant. The B property was also rented out for much of the period and further income was derived from this.
The husband asserts that the wife’s income was primarily used to support herself and the two children she brought into the relationship (T and X), as well as to fund her investment property losses. The husband asserts that the wife received minimal child support income from the father of T and X and that she retained this income for her sole use. The husband later submits that “the parties agreed to each pay their respective children’s costs”. At any rate, the husband asserts that the wife did not have sufficient income to fund the living expenses of herself and her daughters.
The wife however submits that her pension entitlements provided a consistent stream of income for the parties throughout the relationship. She contends that throughout cohabitation she applied all of her income and efforts for the benefit of the family as whole, which included both the rental income produced from the B property and drawdowns on the mortgage over that property.
The wife caused the mortgage liability secured upon the B property over the period of the relationship to be increased from $170,000 to $440,000 which, she asserts, is a direct financial contribution of equity of $270,000. She asserts this was by way of:
a)a $31,000 increment in the AMP facility in June 2005
b)a further increment of $60,000 in September 2005
c)refinancing the facility to $340,000 on 15 March 2006 and, thereafter, by way of a further additional facility of $60,000 on 6 January 2008.
The wife asserts that she was the person primarily responsible for the parenting of the child M and that she undertook the majority of the domestic tasks of the household. The wife asserts that she was primarily responsible for all of the transporting of the children to school and extracurricular activities. The Court accepts that this was so.
At the beginning of the period of cohabitation, the husband received two lump sum insurance payments arising from damage that had occurred to the V property and furniture contained therein. Those payments totalled $118,941 and the husband submits that the wife “made no contribution to these insurance sums”. He then submits that in 2005 he spent around $300,000 on renovations to the V property and that this would have at least partly been reflected in the sale price of that property. The Court accepts his evidence.
In 2005, the husband purchased the R property in his name for $1,250,000, using the V property as security for borrowings in the sum of $500,000 for that purchase. The Court notes that a further sum of $1,000,000 was borrowed later that year when settlement took place. When the husband then sold the V property in 2006, the net sale proceeds of over $600,000, plus the deposit, were used to reduce other debts.
For much of the period of cohabitation, the parties and their children resided at the husband’s R property, enabling the wife to rent her B property if she chose to do so. The wife retained the rental income.
The husband used his funds to buy the wife a new car in 2007, thereby contributing a further $39,500 of his funds.
As to income during the cohabitation, the husband submits that he derived income by drawing from his companies funds as either a salary or directors’ fees. He also submits that he derived income from the P property which was being leased out.
The husband rejects the wife’s submissions that she supported the husband and his children during the cohabitation because she earned a greater income than he did. The husband asserts that both parties undertook domestic duties in the household in which they lived. Further, the husband submits that “both parties funded their lifestyle by drawing on available credit, thereby significantly increasing the level of debt each party brought to the relationship.”
Contributions post separation
After the parties separated, the wife continued to care for and support the child M, who was approximately two years old at the date of separation.
The wife submits that the ADVO proceedings “and other conduct” impeded the parties’ financial and other recovery following the separation and, at times, her “ability to contribute further to that which she did.” There is insufficient evidence to make such a finding.
In her submissions on the parties’ contributions post separation, the wife is critical of the husband’s conduct in this litigation. In particular, she asserts that by not being ready on the first day of the hearing and seeking to introduce further valuation evidence, his conduct meant the matter had to be stood over. The conduct of each of the parties in this litigation was not without reasons for critical comment.
The wife also asserts that the position the husband adopted in relation to the renovation and repair works that needed to be done to the B property resulted in the proceedings being held up for two years.
The husband asserts that for the periods from August 2009 to 25 December 2009 and from 1 January 2010 until 24 August 2010 the wife had exclusive possession of the R property and made no contribution to the expenses or the mortgage. The Court accepts his evidence.
The husband paid the mortgage of $918 per week and the rates of $191 per week on the R property and other outgoings, even when the wife had exclusive possession of the property for the periods referred to above. The Court accepts this evidence.
The husband asserts that from the date of separation he was therefore solely responsible for the repayment of mortgages for both the R and P properties, totalling over $895,000, with no contribution from the wife and on wages of approximately $50,000 from his business.
The husband asserts that he borrowed $85,000 to make the partial property payment to the wife in August 2010, which he did in order to make her move out of the R property so that he could repair and maintain the property.
The husband asserts that he contributed such income as he earned in the post separation period towards the repayment of debt, the needs of the family or the businesses which he operated. The Court accepts that this is so.
Conclusion based on contribution
All in all, the Court assesses the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, and their respective contributions otherwise to the marriage to the date of the hearing to be in the proportion of 60 per cent to the husband and 40 per cent to the wife.
Section 75(2) considerations
The wife is currently 46 years of age and the husband is currently 49 years of age. The husband is in good health. The wife submits that she is in poor health. She suffers from a range of post-traumatic stress disorders, depression and generalised anxiety.
It was a relatively short relationship. The period from the commencement of cohabitation until the parties’ final separation spanned five years. There were some periods of separation in that time, totalling around nine months.
The wife has the primary care of M, who is presently six years old. The husband has the care of M for four nights a fortnight and at other times during school holiday periods, as agreed between the parties.
The wife has the care of her child, X, who is 14 years of age. The husband is required to support his daughter, Y, who is 18 years of age.
The wife is employed as a public servant part-time and the Court has formed the view that she would be able to work full-time in her role if she chose to do so. Through this employment, she presently earns $1,269 per fortnight together with employer-paid superannuation entitlements. The wife has an additional income in the sum of approximately $1,900 per fortnight from her Hurt on Duty pension. She can commute that in part or full when she attains the age of 55 years.
The husband contends and the Court accepts that he does not have as great an income-earning capacity as the wife. The husband asserts that his lucrative automotive services business has been adversely affected by changes in the insurance industry and that no longer generates the income it once did. While the companies of the husband have been determined to have a nil value, the Court takes into account that the husband has that company structure as a potential financial resource of an indeterminate value.
The Court has determined that it would be just and equitable for the parties to retain their existing interests in superannuation. The wife has $19,057 and the husband has $15,709 in accumulated superannuation entitlements.
It is a relevant factor under s 75(2)(o) to take into account that both parties had children from previous marriages who lived with them for periods of time. The wife’s two children lived with them for the duration of the relationship, apart from the period of separation in 2006. The husband’s two children lived with them for only part of the relationship as follows:
a)L and Y lived with the parties from cohabitation until about 2005
b)for most of 2005 only L lived with the parties
c)from February 2006 until September 2006 the parties were separated so neither party had the care of the other party’s children and
d)after the parties’ reconciliation in September 2006, the husband’s children commenced to reside with their mother.
Further factors to be considered under section 75(2)(o) are set out below.
The wife has, since these proceedings commenced, had the benefit of the following amounts by way of partial property settlement:
a)a payment of $85,000 by a Court order of 6 July 2010 to be paid by the husband to the wife’s solicitors
b)a payment of $13,000 from sale proceeds of the P property pursuant to a Court order of 5 July 2011 and
c)a payment of $27,492 pursuant to a Court order of 18 August 2011 to be applied for specific purposes (as set out above).
The first payment received by the wife will be treated as a factor weighing against her favour under this section, as the funds were paid to her solicitors.
As to the $13,000 which she received from the P sale proceeds, the wife asserts that this was applied to the payment of mortgage arrears on the B property. Since it was not wasted but utilised to increase or maintain the equity in the B property, the sale proceeds of which have been taken into account as being divisible between the parties, all the Court can do and all that it has done is to take into account the sale of the P property proceeds as a part of the contribution of the husband of which this sum forms part.
As to the third partial property settlement payment that the wife received, those funds were ordered to be applied to specific purposes and, taking into account those purposes, the payment should not weigh against the wife here.
The husband has had the benefit of only one partial property settlement payment, being the sum of $100,000 paid to him by a Court order of 5 July 2011. With respect to this sum, which the wife proposed to have “added back” against the husband, the husband submits that it should not be “added back” against him. To that end, he submits as follows:
… as a result of the somewhat complicated manner in which the husband has blended his personal and business finances, at first blush it is not readily seen that he used the majority of the $100,000 to reduce his debts and that of his companies at the time.
He also submits that he was “shouldering the sole responsibility to pay for debt brought out of the relationship” and that this partial property settlement payment should not be held to his detriment. The Court finds that it is unable to determine the precise application of these funds but the Court does accept that it was applied for partially business costs, partially living expenses, and partially probably payment of legal fees. Absent the Court being able to precisely define the use of the funds, the Court will take into account that the husband had those funds and the source of them, and applied them in the manner and/or for the purposes deposed by him.
The husband has since separation drawn down on the mortgage over the R property. Some of those drawings have been to meet the needs of his businesses, which have been included as assets of the parties. True it is that the husband’s companies have no value, but in the circumstances of this case, the parties have to take the situation they find themselves in at the time of hearing. It is not on the evidence demonstrated to the satisfaction of the Court that there was deliberate or reckless waste in the husband’s investments in his companies. The financial history of a marriage is often like a roller coaster and, whether one gets off the ride at its financial nadir or apogee, one has to deal with the situation one has. That an investment has been unsuccessful may be unfortunate in the extreme but not necessarily waste and, in this case, it is not so demonstrated.
Some of the husband’s draw downs on the mortgage were used to pay the outgoings of the R property, including at a time when he was not resident in it but the wife was. It is the Court’s view that, in the same way the wife seeks to have the costs of her mortgage repayments and repair and maintenance work to the B property acknowledged as proper expenditure, so too must the husband be entitled to have his expenditure on the maintenance of other assets considered. The Court notes that to do otherwise would be unjust and inequitable.
Some of the husband’s mortgage drawings, he asserts, were also used to meet his own reasonable needs. The husband was entitled to expend money on reasonable expenses of living (as was the wife and as she did). The problem with the claims by each of the parties is that there is no precision in the determination of the amount which would be appropriate to allocate to each of these purposes.
The Court is unable to determine what part of the total sum was applied to what purpose and all the Court can do is to take into account that the drawn down sum was applied in undetermined portions to the various needs referred to.
Each of the husband and the wife has applied funds from various sources to the payment of legal fees. Again, there is a dearth of evidence as to the source and application of those funds. Certain monies (including borrowed monies) were in a general sense said to be applied to legal fees, but little information as to what funds were so applied was provided to the Court. Accordingly, the Court cannot come to a determination as to whether there is any basis for making an allowance for the fees, absent some indication of whether or not the available assets of the parties were depleted by reason thereof and, if so, by what amount.
In considering the parties’ present financial positions, the Court takes into account the sums which are said to be owed by the wife on credit cards and, likewise, those credit card debts said to be owed by the husband.
The wife withdrew some of her superannuation entitlement post separation and it appears that amounted to $124,588. In relation to this the wife submits as follows:
Amongst other things it involved a sacrifice of income from her superannuation pension by the applicant wife and it is submitted is money spent to meet reasonably incurred necessary living expenses Marker which dicta is permissive of a party post separation providing for their own support and is otherwise not unreasonable or extravagant.
The Court finds in relation to this that the argument may well be correct but in any event the Court has made a decision which it takes into account in relation to the superannuation entitlements of the parties.
Each of the parties paid legal fees. In the case of the husband, a significant proportion of those fees were met from a borrowing from the husband’s aunt. The portion of that borrowing which was used to pay legal fees (said by the husband to be $100,000) was not included as a liability on the balance sheet. To the extent that they were not met by the borrowing, the Court will take into account that the husband met the differential from unknown sources.
It was agreed between the parties that there should be an adjustment in respect of the Kia motor vehicle, which the husband purchased for $6,000 but later sold for less. The parties agree that the value of the “add back” that was contended for was $3,000. The Court will take this into account that the husband had the benefit of those funds.
The Court also takes into account here that the wife has had the benefit of the sale proceeds of the Nissan motor vehicle.
The husband has had the benefit of the $8,000 from a motorbike insurance payment which he did not utilise in the purchase of his new motorbike.
In the disordered and imprecise landscape of this case, which could be described in part as barren in an evidentiary sense, the best the Court can do is to take all of those matters into account under section 75(2)(o) and give them the weighting suggested by the above comments.
Conclusion on section 75(2)
For all the reasons referred to above, and having balanced them in circumstances where the relevant factors point to an adjustment in favour of the husband, the Court finds that his proportion of the parties’ net assets not including superannuation should be increased to 62.5 per cent.
Overall division of assets
The above determination will see the wife receive 37.5 per cent of the parties’ net asset pool excluding superannuation and the husband shall receive 62.5 per cent of that pool. In addition, each party will retain their own superannuation entitlements and the wife will retain her “Hurt on Duty” pension rights.
Just and equitable
The division of assets would see the wife receive $89,310 worth of net assets and retain $19,057 in superannuation entitlements, together with her “Hurt on Duty” pension. The husband will receive $148,851 worth of net assets and retain $15,709 in superannuation entitlements.
In the circumstances of this case, the Court determines that result to be just and equitable.
Orders which should be made
The Court proposes to make Orders which will give effect to the following division.
The net sale proceeds of the B property should in the Court’s view be used to discharge the parties’ liability to the intervener. The balance of that liability should then be borne by the parties equally.
To effect the distribution of the parties’ property in the proportions referred to above, it will be necessary for the husband to make a cash settlement payment to the wife in the sum of $59,757.
Otherwise, the parties shall each retain the property interests (including superannuation) and liabilities currently in their name, possession and control.
The wife will receive:
| Assets | ($) |
| Half of net sale proceeds of B property | 27,879 |
| Kia motor vehicle | 21,000 |
| Horse float | 5,000 |
| Furniture of indeterminate value | 0 |
| Horses | 2,300 |
| IAG shares | 4,374 |
| Cash settlement payment from husband | 59,757 |
| Total assets | $120,310 |
| Liabilities | |
| One half of liability to intervener | 31,000 |
| Total liabilities | $31,000 |
| Net assets (not incl. superannuation) | $89,310 |
The husband will receive:
| Assets | ($) |
| R property | 1,000,000 |
| Balance of sale proceeds of P property | 26,310 |
| Half of net sale proceeds of B property | 27,879 |
| S Pty Ltd | 0 |
| S Pty Ltd (loan from husband) | 0 |
| J Pty Ltd | 0 |
| J Pty Ltd (loan from husband) | 0 |
| Motor bike | 7,000 |
| Tractor and equipment | 6,000 |
| Furniture of indeterminate value | 0 |
| Fund’s in husband’s bank account | 16,864 |
| Jewellery | 2,000 |
| Total assets (not incl. superannuation) | $1,086,053 |
| Liabilities | |
| One half of liability to intervener | 31,000 |
| Mortgage on R propertt | 775,174 |
| Loan from Ms Z | 44,543 |
| Loan from husband’s parents | 24,000 |
| Net equity position in J Pty Ltd | 0 |
| Net equity position in S Pty Ltd | 0 |
| Accountants’ fees for S Pty Ltd | 2,728 |
| Cash settlement payment to wife | 59,757 |
| Total liabilities | $937,202 |
| Net assets (not incl. superannuation) | $148,851 |
In the event that the husband for any reason refuses or is unable to pay to the wife the cash settlement sum of $59,757, alternate Orders will take effect requiring the husband to sell the R property and, from the net sale proceeds that are realised, pay such sum as is required to be paid to the wife.
I certify that the preceding two-hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 24 October 2013.
Associate:
Date: 24 October 2013
Key Legal Topics
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Family Law
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Property Law
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Civil Procedure
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