FAMILY COURT OF AUSTRALIA
| INNES & INNES | [2010] FamCA 337 |
| FAMILY LAW – PROPERTY PROCEEDINGS – WIFE’S APPLICATION FOR 70-75 PERCENT OF PROPERTY OF THE PARTIES – APPLICATION OF LAW –The husband having elected to not make a full and frank disclosure of his finances, and to give such unconvincing and contradictory evidence, the husband brings himself within the ambit of decisions of the Full Court in Weir v Weir (1993) FLC 92-338, Black v Kellner (l992) FLC 92-287 and Oriolo v Oriolo, (1985) FLC 91-653 – Costs reserved and abide the outcome of further submissions in reliance upon the decision of the Court |
| Family Law Act 1975 (Cth) ss 75(2), 79(4) Conveyancing Act 1919 (NSW), s 66G |
| Weir v Weir (1993) FLC 92-338 Black v Kellner (l992) FLC 92-287 Oriolo v Oriolo (1985) FLC 91-653 Jones v Dunkel (1959) 101 CLR 298 Spencer v The Commonwealth of Australia (1907) 5 CLR 418 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 Rosati v Rosati (1998) FLC 85-043 IABH & HRBH [2006] FamCA 379 Browne v Green (1999) FLC 92-873 Kowaliw and Kowaliw (1981) FLC 91-092 Pagliotti and Hartner [2009] FamCAFC 18 Williams v Williams (1985) FLC 91-628 Pierce v Pierce (1999) FLC 92-844 Kardos v Sarbutt [2006] NSWCA 11 |
| APPLICANT: | Ms Innes |
| RESPONDENT: | Mr Innes |
| FILE NUMBER: | PAC | 3596 | of | 2008 |
| DATE DELIVERED: | 29 April 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 8 & 9 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingtstone |
| SOLICITOR FOR THE APPLICANT: | L.P. Alidenes & Company |
| COUNSEL FOR THE RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
Orders
That the husband hold his one third interest as tenant in common in the property known as and situate at … (“W Street”) upon trust for himself and the wife as tenants in common as to 71.71 per cent to the wife and 28.29 per cent to the husband.
That within 60 days of this date the husband pay to the wife the sum of $352,778.14 and indemnify the wife and forever thereafter keep her indemnified with respect to any actual or contingent liability with respect to the said property whether such liability be secured or unsecured.
That in the event that the husband fails to tender payment to the wife in the sum of $352,778.14 in accordance with Order 2 hereof, the wife be entitled to acquire the interest of the husband in W Street by paying to him the sum of $138,343 within the further period of 60 days.
That in the event of the wife paying to the husband the sum of $138,343 in accordance with Order 3 hereof, the husband shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause the whole of his one third interest as tenant in common in W Street to be transferred to the wife PROVIDED THAT the wife shall as and from the…
Continue reading Innes and Innes
Sign in free to access the full text
- AGLC
- Innes and Innes [2010] FamCA 337
- Case
- [2010] FamCA 337
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the parties' interests in W Street, considering the existing legal title and the beneficial ownership. Key issues included the valuation of the husband's interest, the calculation of the wife's entitlement, and the mechanism for transferring or selling the husband's share. The court also had to address the allocation of liabilities associated with the property, including secured and unsecured debts, and potential capital gains tax implications.
Coleman J ordered that the husband hold his one-third interest in W Street upon trust for himself and the wife, with the beneficial ownership to be divided as to 71.71 per cent to the wife and 28.29 per cent to the husband. The husband was directed to pay the wife a specific sum of money within 60 days and to indemnify her against all liabilities related to the property. If the husband failed to make this payment, the wife had the option to acquire his interest by paying him a specified amount within a further 60 days, with subsequent indemnification obligations for the wife. In the event of mutual failure to comply with these payment provisions, the husband was to sell his interest, with the proceeds applied first to sale costs, then to discharge the secured encumbrance, followed by a provision for capital gains tax, and finally distributed according to the determined beneficial ownership percentages. The husband was entitled to rental income pending sale, provided he met all outgoings. Each party was to retain other property not specifically dealt with and to indemnify each other against other liabilities. Costs were reserved.
Orders
Orders of the court
1.
That the husband hold his one third interest as tenant in common in the property known as and situate at … (“W Street”) upon trust for himself and the wife as tenants in common as to 71.71 per cent to the wife and 28.29 per cent to the husband.
2.
That within 60 days of this date the husband pay to the wife the sum of $352,778.14 and indemnify the wife and forever thereafter keep her indemnified with respect to any actual or contingent liability with respect to the said property whether such liability be secured or unsecured.
3.
That in the event that the husband fails to tender payment to the wife in the sum of $352,778.14 in accordance with Order 2 hereof, the wife be entitled to acquire the interest of the husband in W Street by paying to him the sum of $138,343 within the further period of 60 days.
4.
That in the event of the wife paying to the husband the sum of $138,343 in accordance with Order 3 hereof, the husband shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause the whole of his one third interest as tenant in common in W Street to be transferred to the wife PROVIDED THAT the wife shall as and from the date of such transfer, indemnify the husband with respect to all liabilities and outgoings with respect to the said property including the liability secured upon the husband’s interest in W Street, (currently approximately $205,000) and the contingent liability for Capital Gains Tax in the event of the sale of W Street or the interest in it acquired by the wife pursuant to these orders (approximately $53,079).
5.
That in the event of the husband failing to tender to the wife the monies payable to her in accordance with Order 2 hereof, and of the wife failing to tender payment to the husband of the monies payable to him in accordance with Order 3 hereof, the husband shall do all acts and things necessary to cause his interest in W Street to be sold by private treaty as and for a price agreed in writing between the parties, or failing agreement in that regard, one third of the market value of the whole of W Street as determined by the nominee of the President of the Australian Institute of Valuers and cause the proceeds of sale of such interest to be applied:
(a) In payment of estate agent’s commission and legal fees in relation to the sale of the husband’s interest in W Street, or one third of such commission and costs if the whole of W Street be sold.
(b) In discharge of the secured encumbrance relating to the husband’s interest in W Street ($205,000).
(c) In payment to the husband of the sum of $53,079 by way of provision for the husband’s contingent liability for Capital Gains Tax in relation to the sale of his interest in W Street.
(d) In payment to the wife of 71.71 per cent and to the husband of 28.29 per cent of the balance of proceeds of sale then remaining.
6.
That pending completion of the sale of W Street in accordance with Order 5 hereof, the husband shall be entitled to receive the rental income generated by his interest in the property PROVIDED THAT the husband shall promptly and fully pay all mortgage instalments and other outgoings on the property as and when they fall due.
7.
That, save as provided for by these orders, each party retain all property real or personal possessed by either of them.
8.
That each party indemnify the other party with respect to any actual or contingent liability not referred to in these orders.
9.
That costs be reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.