Innes and Innes - [2010] FamCA 337

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

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 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).
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.
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.
That, save as provided for by these orders, each party retain all property real or personal possessed by either of them.
That each party indemnify the other party with respect to any actual or contingent liability not referred to in these orders.
That costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Innes & Innes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3596/2008

MS INNES

Applicant

And

MR INNES

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court relate to settlement of property. Ms Innes (“the wife”) seeks that she receives 70-75 per cent of the property of the parties. Mr Innes (“the husband”) seeks that he receives 55 per cent of the property of the parties.
Apart from the divergent perceptions of their entitlements to their property, there is little agreement between the parties as to the net value of such property. Determining the property of the parties is significantly influenced by the Court’s conclusions with respect to the credibility of the parties, for reasons which will be articulated.
At the commencement of the trial, counsel for the parties identified a number of salient issues. Those included the significance of the wife’s contribution of a workers’ compensation settlement in the sum of approximately $100,000, whether or not the wife’s contributions were enhanced by domestic violence allegedly perpetrated against her by the husband in company with others, and the significance of the disposition of an unencumbered property at S Street to the parents of the husband.
In his primary submissions, counsel for the wife sought orders in the following terms:
(1)That the husband forthwith and within 28 days transfer, subject to the existing mortgage to the wife the whole of his right title and interest in the property situated at and known as [W Street](the property).
(2)That the husband within 48 hours issue an Attornment Notice to the National Australia Bank that the rent to which the husband would otherwise be entitled be paid to the wife.
(3)That the wife cause her interest in the property to be sold for the best price obtainable in the following manner:
a)Offer same to the existing co-owners for a price not less than $700,000;
b)If the above offer is not accepted and the co-owners are unwilling for the property to be sold to bring proceedings for a partition and sale and thereafter diligently prosecute same;
c)Upon the settlement of the sale of the property cause the mortgage to be discharged.
(4)That the proceeds of sale after discharge of the mortgage be applied in the following proportions:
a) To the wife 80 per cent.
b) To the husband 20 per cent.
(5)That the husband pay the wife’s costs.
[Submissions of counsel for the wife, dated 29 March 2010, pages 9 & 10, par J].
Albeit not articulated with such specificity as did counsel for the wife, counsel for the husband submitted in his written submissions that the property of the parties as sought to be determined in those submissions be shared equally by the parties. When the competing claims are understood, it is readily apparent that the parties have very different views of their respective entitlements.
The value of the major asset of the parties, a one third interest in commercial premises at W Street was initially controversial, the husband contending that a 15 per cent discount in the value of a one third interest in the property was appropriate, the wife contending that no such discount was appropriate.
An issue of some complexity in the proceedings relates to what might broadly be termed “the Turkish dispositions”. It is not in serious doubt that, during 2003, the parties remitted two sums of money to Turkey. The first such sum, remitted on 30 September 2003 in the sum of AUD$66,139.48 was transferred to the wife’s brother. The following day, a further sum of AUD$66,139.61 was transferred to a Mr C. One of the two sums of money undoubtedly ended up being utilised to purchase real estate in Turkey. The property has apparently been sold.
What became of the second sum, the one received by the wife’s brother was controversial. The wife essentially asserted that the second sum of money ended up being paid to Mr C in relation to the acquisition of the Turkish real estate. The husband contended that the money had not been thus utilised and had, in effect, been either retained or disbursed by the wife’s brother, either for his own or the wife’s benefit.
The husband and wife are currently engaged in litigation in Turkey with Mr Z to whom the Turkish property was allegedly transferred in 2008. Mr Z is a party to those proceedings. The wife’s brother is apparently not a party to the proceedings. Nor is Mr C.
The Court has struggled, particularly in the light of evidence which emerged during cross-examination of the husband, to know how to regard the evidence before it in relation to the Turkish disposition. That difficulty has not been alleviated by the absence of any pleadings or other documents giving any clue as to the nature of litigation which is pending in Turkey.
Although, without such information, expert opinion evidence with respect to Turkish law may have been of limited assistance, in the complete absence of such evidence, the Court cannot attempt to speculate as to what that litigation may entail, much less what its outcome could possibly be.
Whilst both parties agreed that whatever might happen in the Turkish litigation was a matter for the Turkish courts, about which this Court could not possibly reach any conclusion, counsel for the husband sought that the payment of $66,500 remitted to the wife’s brother be notionally added back to the asset pool for the purpose of these proceedings. Counsel for the wife submitted that it ought not.
A not entirely unrelated issue, less than clearly identified at the commencement of the trial, emerged during cross-examination of the husband. That issue relates to how a sum of $140,000 received by the husband in Turkey should be treated in these proceedings. The sum appears to be related to the Turkish real estate referred to earlier. Counsel for the wife submitted that the sum should be taken into account as having been utilised and/or retained by the husband. Counsel for the husband opposed that approach, contending that how the receipt of those funds should be treated would be properly a matter for determination by the Turkish court determining the pending proceedings referred to above.
Albeit perhaps of minor significance in an overall sense, the earning capacities of the parties were controversial.

Credit

In a case where there has been a noticeable absence of source documentation, or explanation for such absence, the Court’s findings with respect to the credit of the parties and their witnesses assume considerable significance.
In his written submissions on her behalf dated 29 March 2010, counsel for the wife submitted that the husband was “an untruthful witness”. In support of that contention, counsel for the wife referred to the husband’s assertion that he had not worked since moving to Melbourne, and later concession that he had helped a friend install a shop, and had worked at an Airport.
Reliance was also placed upon the husband’s evidence in cross-examination with respect to his domestic arrangements in R. Counsel for the wife pointed out a number of curious aspects of the husband’s evidence in that regard. Counsel for the wife also relied in support of his contention that the husband lacked credibility to the husband’s evidence of the disposal of the proceeds of sale of the Turkish property. Reference will necessarily be made to this topic later, and in more detail.
In written submissions on his behalf dated 19 April 2010, counsel for the husband made extensive submissions with respect to “competing evidence and credit generally”. It was generally asserted in those submissions that the Court would not accept the wife as a truthful witness. Reference was made to the wife’s asserted reliance upon an interpreter when giving evidence as indicative of a lack of veracity on her part. With respect to counsel for the husband, nothing emerging from the circumstances surrounding the wife’s reliance upon an interpreter adversely impacts upon the credibility of her evidence. Had the wife elected to parry every question by deferring to the interpreter, different conclusions might be reached having regard to the matters submitted by counsel for the husband. [See paragraph 7 of submissions].
Counsel for the husband referred to the wife’s evidence with respect to loans asserted to have been provided to her by the children of the parties. Whilst the Court does not find those claims proved, it does not mean that the credibility of the wife in making those assertions is necessarily damaged. The claims may be, they just have not been proved.
In support of his contention that the wife was not a truthful witness, counsel for the husband referred to the conflicting evidence given by the wife in relation to her capacity for work. Whilst it is correct to say that the evidence of the wife was vague in relation to the precise application of monies received by her, and particularly the $100,000 workers’ compensation payment received by her, the evidence does not provide a rational basis for concluding that any significant part of the sum was not applied for the benefit of the family.
There is force in the submission that the wife appears at times to have adopted different stances in relation to the impact of her back injuries upon her capacity for employment. Closely scrutinised however, that evidence does not in the Court’s view establish mendacity.
With respect to the valiant endeavour by his learned counsel to do so, nothing raised in defence of the husband with respect to his current living arrangements in Victoria militates against forming conclusions generally adverse to the husband in terms of his credibility. To suggest that the husband’s evidence lacked the “ring of truth” would be to encapsulate the Court’s reaction to the answers advanced by the husband during cross-examination with respect to that and other topics.
Whilst it may be correct to submit, as counsel for the husband has, that the husband never contended that he lacked the capacity to earn income into the future, a reading of the transcript of his evidence would confirm that the husband was not frank or forthcoming in relation to that topic, or to his financial matters generally.
Perhaps the most dramatic example of the deficiencies in the husband’s evidence is to be found in his testimony with respect to the $140,000 which came to him in Turkey, and which he has either retained in some undisclosed repository or recklessly, negligently or wantonly lost, as he claims. The submission of counsel for the husband that “the $140,000 would constitute an add-back if it were relevant to these proceedings” realistically recognises that the evidence of the husband in relation to how he allegedly disbursed the $140,000 was simply not credible.
As submitted by counsel for the husband, whatever the circumstances surrounding the transfer of the property at S Street by the husband to his parents for no consideration, the absence of evidence of value before this Court precludes the Court from making a finding in the terms sought on behalf of the wife. It could perhaps be suggested, realistically, that the absence of evidence of the equity in the property precludes either any notional adding back of such equity or any regard being had to it within the context of an evaluation of the contributions of the parties. The issue does not impact upon the credibility of the husband as the submissions made on behalf of the wife in relation to the alienation of the S Street property proceed in reliance upon the husband’s own evidence in that regard.
The wife was cross-examined with the assistance of an interpreter. As a reading of the transcript would confirm, the proficiency in English gained by the wife during her more than two decades of residence in this country adequately equipped her to respond to cross-examination in English, referring to the Turkish interpreter on but a handful of occasions.
The wife presented as an essentially frank witness. At times the wife succumbed to the temptation to exaggerate mildly. At other times the wife appeared to be somewhat evasive in responding to questions. No finding of fact made in this case is reliant upon evidence by the wife which suffers from defects of those kinds.
Ultimately, save in some limited respects, the wife’s evidence in relation to disputed matters of fact does not assume crucial significance. That is largely because, as the wife readily conceded, she does not have personal knowledge of the facts in relation to the majority of those issues.
Whatever shortcomings cross-examination may have revealed with respect to the credibility of the wife, those shortcomings pale into insignificance when regard is had to the cross-examination of the husband.
In relation to the alleged domestic violence, the wife’s evidence was somewhat vague. A number of the concessions she made with respect to the assistance provided by the husband’s parents, and particularly his mother, subsequent to such alleged violence were not readily reconcilable with the allegations the wife had made.
Ultimately, for reasons which will be articulated, the vagueness and inconsistency in relation to the wife’s evidence with respect to alleged domestic violence does not assume decisive significance. Preferring the evidence of the wife to that of the husband where the two are in conflict is the inevitable consequence of the Court having seen and heard the husband and wife cross-examined. So concluding is in no way referrable to the demeanour of either party. The more difficult issue is the significance of preferring the wife’s evidence to that of the husband.
The wife’s brother was cross-examined at some length in relation to the $66,500 remitted to him by the parties in 2003. In the course of cross-examination, the wife’s brother asserted that he had provided a receipt to the wife’s solicitors evidencing the payment by him to Mr C of the funds which he received on or about 30 September 2003. Such document never materialised. Whether or not it ever existed is unclear. Nor did a copy of the document ever materialise.
Through no fault of counsel for the husband, cross-examination of the wife’s brother in relation to the Turkish dispositions was inconclusive. The evidence of the wife’s brother alone however does not establish, on the balance of probabilities, that he in fact remitted the funds that he received to Mr C. Other documentation, not relied upon by the wife’s brother, to which reference will later be made may impact upon the probabilities, but, particularly given the brother’s assertion that he had a document evidencing the payment to Mr C which was not produced and its absence not explained, the Court is precluded from making that finding.

In his affidavit of evidence in chief, the wife’s brother deposed to having observed acts of domestic violence being perpetrated upon the wife. Ignoring the substantial parts of the brother’s affidavit in relation to that topic which were clearly objectionable, there remained admissible evidence supportive of the wife’s claims with respect to domestic violence between 1989 and 1992. The wife’s brother was not cross-examined in any detail with respect to those allegations. There is no rational basis for rejecting his evidence with respect to those allegations.
Cross-examination of the husband proved devastating with respect to his credibility. Given the significance which the credit finding assumes in the determination of this case, the Court proposes referring at some length to the matters emerging in cross-examination of the husband which are of significance with respect not only to his credibility, or its absence, but also to matters in issue.
Early in his oral evidence in cross-examination, the husband asserted that he had not worked since 2007 in paid employment. That evidence was given without qualification. Indeed, the husband clarified that since 2007 his only income had been rental income from the W Street property. The husband also clarified that he had not derived any rental income other than from that property, either elsewhere in Australia or from Turkey.
The husband asserted that since 2007 he had not worked as a tradesman although he had been qualified to do so. The husband further asserted that his circumstances had been thus as he had become “depressed” when he was divorced.
Subsequently in cross-examination, when carefully, and skilfully reminded of a series of observations of the husband not two weeks prior to his giving evidence, it emerged that the husband had undertaken employment as a tradesman, including, albeit unquantified, paid employment in that capacity for about two weeks at an Airport.
Without referring to it in detail, the cross-examination with respect to the husband’s activities on 25 February 2010, and evidence relating to his acquiring a business name registered on 31 October 2008, the acquisition of a fax machine, the retention of a work ute and tradesmen’s equipment, are all consistent with the husband being engaged in remunerative employment.
Whatever the nature and extent of the husband’s employment as a tradesman or contractor, his own evidence in that regard is not able to be reconciled with the claims made by him with respect to his employment since 2007 at the commencement of his cross-examination. Although the husband did not concede any other post separation income from personal exertion than whatever he was paid for working at the Airport, the husband asserted that he had forgotten about that employment. The improbability of a person who has only had one paid job in the past two to three years forgetting about that paid employment is readily apparent. The husband conceded in cross-examination that it was not correct to suggest, as he earlier had, that he could not get employment in the post-separation period because he had been “depressed” in that period.
The circumstantial evidence in relation to the payments made by the husband with respect to the matrimonial home between separation in 2006 and the sale of the matrimonial home in 2008 is also inconsistent with the husband’s assertion that his only source of income was rent from W Street.
It was put to the wife in cross-examination, and accepted by her, that the husband had paid approximately $70,000 with respect to the mortgage over the matrimonial home between separation and the sale of the property some two years later, and had also paid $27,000 to discharge the shortfall on the mortgage on the property when the property was sold. In addition, during that period, the husband had paid rates and other outgoings on the property, electricity charges and telephone expenses. In 2007, the husband had also purchased airline tickets for the wife and the parties’ daughter to travel to Turkey. These payments could not have been made if the husband had also little “money”, whether it was “income” or otherwise, available for his use.
As will be seen, the Court is ultimately unable to make findings as to the husband’s earning capacity subsequent to separation, at present, and into the future.
Cross-examination of the husband revealed a number of curious aspects of what he once (in an affidavit in October 2008) described as his “relationship” with a Ms X. These are comprehensively detailed in the written submissions of counsel for the wife dated 21 April 2010. [See paragraph 9].
The husband has consistently maintained that his “relationship” with Ms X is not other than one of friendship. Ms X swore an affidavit earlier in the proceedings. That affidavit was not read in the husband’s case a trial. Ms X gave no evidence at trial. No explanation for the failure to call Ms X was advanced, nor was there any evidence of any inability of Ms X to have given evidence. It can in the circumstances be safely inferred that Ms X’s evidence would not have assisted the husband’s case.
Without referring to them in detail, the times at which the husband was sighted leaving the premises of Ms X, which are virtually opposite premises which the husband asserts that he rents, the utilisation of Ms X’s telephone line for the purpose of the husband’s business fax machine, the parking of the husband’s motor vehicle suggest that, whatever its true nature, there is more to the relationship between the husband and Ms X than the husband was prepared to disclose.
Ironically, given the ages of the parties, the period since they separated, and the matters that are potentially relevant to determining their entitlements to settlement of property, the husband had little to fear from frankly disclosing whatever his relationship with Ms X is. It is that failure to be candid, rather than any possible significance of the relationship, which assumes significance with respect to the husband’s credibility.
Nowhere is the absence of documentation in this case more significant than with respect to the evidence of the husband in one particular respect. The husband conceded in cross-examination that he had received all the proceeds of sale of property in Turkey but had given no indication what he had done with those proceeds. The husband subsequently conceded that he had received $140,000 from the sale of the Turkish property. Not a document evidencing the receipt of monies from the sale of the Turkish property, or their disposition was ever proffered by the husband.
The husband asserted in cross-examination that his wages from the Airport had been paid into his bank account. The husband was unable to point to where that had occurred, or how that had occurred, or explain why he could not explain these matters. No bank records of significance were ever tendered by the husband. The husband was unable to explain why bank records of his which had been subpoenaed had not been produced.
Other than credit card statements referring to 2008, the husband tendered no documents with respect to his credit cards. Nor did the husband ever explain how, notwithstanding his absence of income other than from rental, he was able to service his credit card debts. The husband’s assertion that the current balance of his credit card debts is similar to the balance at the date of separation was not supported by any documentation to which this Court has been referred.
The husband conceded in cross-examination that he had not paid child support since separation. The husband sought to parry cross-examination in relation to that topic by suggesting that, although fourteen years of age at the time, the parties’ second child had been in fulltime employment at that time. So improbable was that assertion that the husband ultimately, albeit reluctantly, conceded that his daughter could not, at fourteen years of age, have been in fulltime employment. The husband then retreated to the position that the daughter had been in part time employment.
Against that wave of damaging cross-examination, the tsunami arrived when the husband was cross-examined with respect to the sale of the Turkish property. The husband asserted that he had received $140,000 in cash in Turkey. This was asserted to have been dissipated over a period of three months. The husband asserted that all of the money had been utilised by him on a combination of travel, accommodation, casinos and gambling in Turkey and Thailand.
Initially the husband suggested that he had dissipated the money over a period of six months. That shortly thereafter became a period of three months. Not a document evidencing any aspect of the husband’s allegations with respect to the $140,000 was proffered. Put simply, the husband’s evidence in relation to the fate of the $140,000 was incredible. The Court suspects that the money has been safely parked somewhere out of the wife’s reach, and will be available to the husband in the future. Even if the husband has, as he claims, dissipated the monies, if it be relevant in these proceedings, the husband’s own evidence provides no rational basis for finding that the loss of funds was other than deliberate, reckless or wanton.
In cross-examination, the husband confirmed that the transfer of the property S Street to his parents, which had been without consideration, had occurred at a time when there was no mortgage on the property. Neither of the husband’s parents gave evidence in the proceedings. The husband confirmed that nothing precluded his parents from having given evidence in the proceedings. It can safely be inferred that the evidence of the husband’s parents would not have assisted him.
The husband asserted that he had gambled a further $20,000 which he realised on the sale of a motor vehicle subsequent to separation. Those funds were asserted to have been dissipated in Australia. Not a document evidencing the receipt or dispersal of the funds was ever proffered.
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 squarely within the ambit of decisions of the Full Court such as Weir v Weir(1993) FLC 92-338, Black v Kellner (l992) FLC 92-287 and Oriolo v Oriolo, (1985) FLC 91-653.

Material Facts

The following material facts either emerge uncontroversially, or, to the extent that they involve controversy, are found as facts by preferring the evidence of the wife to that of the husband in relation to such disputed issues of fact.
The parties married in 1985.
They separated two decades later in June 2006. Their marriage was dissolved by decree pronounced 20 October 2008.
The husband was born in 1965. He is accordingly aged 44. The husband is diabetic. There is no medical evidence before the Court in relation to the impact of that condition upon the husband’s capacity for appropriate gainful employment. Such evidence as is before this Court suggests that the husband is able to, and is working. The husband may have re-partnered. Save with respect to credit, whether he has or not does not assume significance in the determination of the parties’ dispute.
The wife was born in 1969. She is 40 years of age. There is no evidence that the wife has re-partnered. The wife gave evidence, which the Court accepts, of residual disability arising from a workplace accident more than a decade ago which limits her capacity for employment. There is no suggestion that the wife is unable to adequately discharge the duties required of her in the position which she currently occupies and has occupied for almost twelve months. There is no evidence that the wife’s security of tenure in that employment is problematic.
There are two children of the marriage, a son who was born in 1986 and is accordingly 23 years of age. The second child of the marriage, a daughter, was born in 1992 and is now self-supporting. The daughter will shortly attain 18 years of age.
When the parties commenced cohabitation neither had any assets of significance.
At the time the parties married, in Turkey, the wife was 15 years of age and the husband was 19.
The parties commenced cohabitation in Australia in early 1986. At that time the husband was employed as an apprentice. The wife did not have employment.
Shortly after the wife’s arrival in Australia, she became pregnant with the parties’ first child who was born in October of that year.
The parties first lived in rented accommodation in the same street as the husband’s parents who lived a few houses away from them.
By Memorandum of Transfer dated 31 October 1986, the husband and wife acquired as joint tenants a property at S Street for a consideration of $55,500. The property was acquired as joint tenants.
On her own evidence, the wife was not involved in the acquisition of that property. The property was transferred by Memorandum of Transfer dated 20 February 1990 to the husband’s parents in consideration of “natural love and affection”. The property was at that time unencumbered.
Although the husband gave no detailed evidence about the acquisition, there is no suggestion that the property was acquired other than by the parties’ borrowing a substantial proportion of the purchase price. In the four years during which the parties held the property, the mortgage was paid out. The evidence is unclear as to how that occurred. In the absence of any evidence of the mortgage having been paid out by some other means, and there is no such evidence, the Court is left to infer that the parties’ funds were utilised for that purpose.
There is no evidence as to the value of the property at the time it was transferred to the husband’s parents without consideration. The evidence in relation to the circumstances surrounding the disposition is scant. The best the Court can do is to find that the property which was probably worth no less than $55,000 was given away by the parties. Why that was so is not something about which the Court can make findings of fact. Nor can the Court affirmatively be satisfied that, as her evidence implies, the wife’s signature on the transfer of the property to the husband’s parents was forged. The Court’s conclusion with respect to the credibility of the husband gives rise to considerable suspicion, but suspicion is not proof.
In those circumstances, the Court does not propose enhancing the contribution entitlement of the wife. In the absence of some logical or legal reason for assuming that the disposition must have involved an alienation of funds which the wife opposed, the Court lacks any evidentiary foundation for so concluding.
Subsequent to the birth of the first child of the parties in late 1986, the wife was assisted by the husband’s mother in a variety of ways. The wife herself assisted the husband’s parents in their home in a variety of ways.
In about 1989, the wife commenced employment doing factory work. The husband’s parents assisted with the care of the parties’ son who was then aged about three. By that time, the husband was also working at the factory. Both parties clearly worked hard, including often working double shifts of sixteen hours per day. The wife conceded that the husband sometimes earned more than the wife did as he was on call at the factory. During this period both parties worked rotating shifts and could sometimes “spend a lot of time with each other for two weeks”.
In 1989, the parties returned to Turkey. The wife’s oral evidence in relation to their intentions was at variance with the allegations contained in her affidavit. In oral evidence the wife said that the parties had about $50,000 all of which was spent whilst they were in Turkey for a period of about twelve months, after which they returned to Australia.
In 1992 the second child of the parties was born. The wife was at home caring for the child for about eighteen months, returning to work at the factory in 1993. The wife remained in employment at the factory until she was injured in the course of her employment in about 1995. The wife received weekly compensation payments thereafter for a period of about three years. As with the husband’s wages, the wife’s earnings, and subsequent weekly workers’ compensation payments, were applied to the benefit of the family.
The wife’s rights under the workers’ compensation legislation were redeemed in about 1997 or 1998 and, twelve months thereafter, a lump sum of $100,000 was received by her as a consequence. However it was applied, and the parties do not agree entirely in that regard, the Court is satisfied that the $100,000 was used for the benefit of the family. Counsel for the husband does not appear to suggest otherwise.
Until she commenced her current paid employment, approximately twelve months ago, the wife did not have any significant employment between 1995 and 2008.
Whilst the parties may have acquired property in Turkey in 1987 and 1989, the evidence does not suggest that such property remained owned by them subsequent to 2003. What became of the proceeds of sale is less than clear, and may have some connection with the Turkish dispositions which have earlier been alluded to and will later be considered.
After the parties returned from Turkey in about 1990 or 1991, they purchased a family home at H Street at a cost of $80,000. The property was registered in both names. The wife deposed to joint savings of $40,000 being utilised for that purpose. That assertion does not sit well with the wife’s oral evidence that the whole of their savings had been utilised during the twelve months in which the parties were living back in Turkey.
The husband asserted that H Street was purchased in about 1988. The husband asserted that the purchase price ($84,000) was raised as to $37,000 from joint savings of the parties and “funds received from my parents” in the sum of approximately $50,000. The wife did not suggest in her affidavit how the balance of purchase monies had been raised.
The husband asserted that the property was sold in about 1993-1994. The husband did not in his affidavit give any indication of whether his parents were paid any monies at that time. The wife’s affidavit did not traverse the ultimate sale of the property.
Neither party was cross-examined in relation to the husband’s assertion that his parents provided $50,000 for the purpose of purchasing the H Street property. Perhaps unsurprisingly, the primary submissions of counsel for the wife do not allude to this topic. Perhaps more significantly, no submission made by counsel for the husband, either with respect to contributions or otherwise, places reliance upon any alleged provision of $50,000 by the husband’s parents to assist in the purchase of the H Street property.
In the circumstances, the Court is in real doubt as to whether the husband ultimately seeks to rely upon the alleged provision of funds from his parents of approximately $50,000, or any lesser sum. The husband’s parents did not give evidence in relation to this, or any other topic. No explanation for the failure of the husband’s parents to give evidence has been advanced. It can be reasonably inferred that such evidence would not have assisted the husband’s case (see Jones v Dunkel (1959) 101 CLR 298).
In the absence of evidence corroborating the husband’s assertions, or other circumstantial evidence establishing the husband’s claim, the Court does not find his allegation proved. Given the Court’s conclusions with respect to the credibility of the husband, only if there was other reliable evidence before the Court in relation to this allegation could it be found proved.
In 1992 or 1993 the parties purchased a property at N Street for approximately $120,000. The property was purchased in the joint names of the parties. The full amount of the purchase price was borrowed. The property was subsequently renovated. The husband and other members of his family undertook work on the property. The parties at that stage had two children under five. The husband suggested that the mortgage taken out to acquire the property was reduced by approximately $90,000 when the H Street property was sold. Whether or not that occurred has not been proved, and is probably not of great significance in any event.

In 1996 or 1997 the husband purchased a commercial property at D together with his brother. The parties disagreed as to the purchase price of the property, the husband suggested $295,000, the wife $135,000. As with other aspects of the case, there is no documentation which impacts on the probabilities.
The wife deposed to not knowing what became of the husband’s interest in D property. The husband deposed to the property having been sold very soon after it was purchased. Neither party suggested that the acquisition, ownership or disposition of the D property assumes significance for present purposes. The Court could not safely make findings about it even if they did.
In 1998 the parties purchased the property at E Street. The wife asserted the purchase price was $230,000, the husband $277,000. The wife asserted that she utilised the $100,000 which she received from her workers’ compensation redemption to the acquisition of the property. The husband conceded that “some” of the wife’s workers’ compensation redemption was thus applied.
Whatever the truth of the matter, and there is again no documentation, the property was sold a year or so after its purchase. What net proceeds of sale were thereby generated does not emerge from the evidence of either party. Whatever the reality, the contribution by the wife of her $100,000 workers’ compensation redemption is a contribution which requires consideration pursuant to section 79(4) of the Family Law Act 1975 (Cth) (“the Act”).
In 1998 or 1999 the parties opened up a business known as R Company. The vehicle for the business was a corporation R Pty Limited. The parties appear to consider themselves to have been the shareholders in and directors of the corporation.
The husband, who was and remains a tradesman, was the primary generator of income of R Company, although the wife asserted that she made contributions [paragraph 72 primary affidavit] which were not disputed in cross-examination. The business was voluntarily wound up in 2005, the husband asserted because of a lack of profitability.
In about 1997 a commercial property at W Street was purchased by Mr O, the husband and his brother for $1,191,000. Each party acquired a one third interest as tenants in common. The monies to purchase the property were borrowed. Part of the borrowings taken out by the husband was secured against the home of the parties at N Street. The husband currently receives $1000 per week by way of rental from the W Street property.
In 2000 the parties purchased their last matrimonial home at G Street at a cost of $500,000. At about that time the property at N Street was sold for approximately $385,000. The proceeds of sale were applied to the purchase of G Street. The balance of purchase price was borrowed.
In about 2003 the parties remitted two sums of money, each of approximately AUD$66,500 to Turkey to invest in real estate. What became of those funds in terms of real estate ventures is unclear, and ultimately a matter which will fall for determination by a Court in Turkey. The husband’s evidence in this Court is that, in mid 2008 he received $140,000 being, he asserted, the proceeds of sale of whatever interest the parties’ acquired in real estate in Turkey pursuant to the 2003 transfer of approximately $133,000 to that country.
Subsequent to the parties’ separation, the wife remained in residence of the former matrimonial home at G Street until it was sold in April 2008. Thereafter the wife has lived in rented accommodation.
During the period that the wife remained in the matrimonial home, the younger child of the marriage was residing there and had not attained 18 years of age by the time the property was sold. The husband paid the mortgage and the other outgoings referred to earlier in these Reasons during that period.
The property was sold for $580,000, all of which was paid to the mortgagee, together with a further sum of $27,000 which the husband paid. The source of the $27,000 thus paid was said by the husband to have been borrowed from AL and SA. [Primary affidavit, par 71]. Neither of those persons gave evidence in relation to the alleged advance. The husband produced no documentation in relation to that sum.

The property of the parties to the marriage

The husband owns a one third interest in the W Street property. Mr OR, an appropriately qualified valuer, valued the premises in the sum of $2,250,000. One third thereof is $750,000.
On behalf of the husband it was initially submitted that such sum should be discounted by 15 per cent to produce figure of $637,500. Counsel for the wife at all times opposed any discounting of the sum of $750,000.
The High Court in Spencer v The Commonwealth of Australia (1907) 5 CLR 418, observed that the valuation of real estate is influenced by the concept of “highest and best use”, which provided that land be valuated “for the most advantageous purpose for which it was adapted”.
Valuation in practice has often been described as having discretionary characteristics. In Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 Stephen J recorded:
44.…I am unwilling to disturb his Honour's finding on valuation. This Court has consistently applied the rule that on a question of valuation an appellate tribunal is not justified in substituting its own opinion for that of the court below unless it is satisfied that the court below acted on a wrong principle of law or that its valuation was entirely erroneous (The Commonwealth v. Milledge [100], at p. 159; Commissioner of Succession Duties (S.A.) v. Executor Trustee and Agency Co. of South Australia Ltd. [101], at p. 367; The Commonwealth v. Reeve [102] ). See also Emerald Quarry Industries Pty. Ltd. v. Commissioner of Highways [103], at pp. 356, 374. As with the assessment of damages, especially in personal injury cases, the valuation of property by a court has many of the characteristics of a discretionary judgment. Valuation is a matter of estimation, not of precise mathematical calculation. It certainly involves the making of a value judgment in the metaphorical as well as the literal sense.
As his valuation report makes clear, Mr OR’s valuation of the W Street premises can be comfortably accommodated within the framework of the authorities relevant to determining the valuation of real property.
The concept of “discounting” the market value of an asset in which an entity holds less than a controlling interest is well known and accepted within the context of valuing interests in partnerships and corporations. Underpinning the approach is the reality that such interests are not readily saleable in the market place. On the one hand, in order to realise its interest, the holder of a minority interest will generally accept less than might result from a sale of the whole entity in the market place. Conversely, given the statutory and equitable constraints on majority interest holders, and ultimate ability of those interest holders to cause the sale or liquidation of the entity holding the assets, a commercial figure will usually be arrived at in order to pay out the minority interest holder.
Different considerations apply however, where, as is the case here, the minority interest holder has a clear statutory entitlement to procure the sale of the property at and for the best price reasonably obtainable.
Given, as counsel for the wife has submitted, the inability of the co-owners of the W Street property to resist an application by the husband pursuant to section 66G of the Conveyancing Act, 1919 (NSW), to discount the husband’s interest would not be justified. Put simply, why would the husband accept 15 per cent less than the value of his interest in the W Street property when he could commence proceedings under 66G of the Conveyancing Act, the outcome of which would be either a sale of the property at, on the expert evidence before this Court, $2,250,000, or the acquisition of his interest by his co-owners for a sum representing one third of that amount. In the circumstances, the Court finds the value of the husband’s interest in W Street to be $750,000.
Neither party disclosed any significant sum in bank accounts. Neither party disclosed, or otherwise by reliable evidence established any significant value for household furniture and effects, motor vehicles, tools of trade or jewellery. The wife has a motor vehicle, the equity in which is not able to be suggested with confidence. The wife’s evidence in relation to the acquisition of the vehicle suggests that her equity in it could not exceed $20,000. Including the motor vehicle at $20,000 net subsumes any need to otherwise add back $20,000 which the wife received from the proceeds of sale of G Street in 2008. There is no other reliable evidence of the valuation of assets.
The husband conceded that he had paid legal fees of $48,869.32. That was suggested to have been from borrowings from three named individuals. Whilst the Court’s findings with respect to the credibility of the husband entitle it to proceed without “undue caution” in relation to him, the overarching requirement to do justice and equity is not thereby absolved. Nor does the absence of a need for undue caution provide a license to punish the husband. Whilst the Court is not reluctant to adopt a robust approach to the husband’s evidence with respect to financial matters, the Court is anxious to avoid double counting.
Whilst the husband could, on his own evidence, have paid his legal fees from funds generated by him in one or more ways, the Court proposes to offset his paid legal fees against the indebtedness which he asserts relates to them. The Court does not recall specific cross-examination of the husband on this point.
Similarly, whether the wife paid $27,000 or some greater sum, her evidence being quite vague in that regard, there is no rational basis for concluding that so doing arose other than by having funds made available to her, possibly by way of advance from the parties’ son. As counsel for the husband submitted, the wife’s evidence does not establish that she owes family members more than she may have paid in legal fees.
Albeit unsatisfactory in quite different respects, the evidence of both parties with respect to paid legal fees as add-backs and the means by which those payments were made renders it fair to disregard legal fees or monies owing with respect to paid legal fees.
The husband asserted that he owes income tax. Annexed to the husband’s recent affidavit were a number of notices of assessments apparently issued by the Australian Taxation Office. Those liabilities can be accepted. How they came about is perhaps a different question. The annexures to the husband’s affidavit suggest that he personally owes the Australian Taxation Office $15,924.45. The same document suggests that R Pty Limited has no liability to the Australian Taxation Office.
In his affidavit, the husband asserts that the effect of the documents attached to his affidavit is to evidence an indebtedness of R Pty Limited to the ATO in the sum of $15,924. The Court does not accept that the documents relied upon by the husband evidence such a liability. Moreover, there is no evidence of any demand or other steps being taken by the ATO to pursue R Company, which is suggested to have been liquidated in 2005, or any directors of the corporation with respect to any liability.
Whilst the evidence before this Court suggests that the husband could, had he lodged returns, have paid his personal tax liabilities as and when they accrued, the Court proposes taking into account the husband’s personal liability to the ATO in the sum of $15,924.
Given that the husband would have to sell, either to a co-owner or in the market place his interest in W Street to realise it, it is reasonable to take into account the sum of $53,079 for Capital Gains Tax liability attaching to that property. (See Rosati v Rosati (1998) FLC 85-043 and IABH & HRBH [2006] FamCA 379). That figure emerges from Annexure “B” to the husband’s primary affidavit evidence, and has been supplied by a person who can be regarded as having knowledge of, and thus being able to depose to the likely quantum of the husband’s CGT liability.
The husband’s one third interest in the mortgage over W Street is asserted to be $205,000. The husband was not challenged in relation to that assertion. That figure should be taken into account. In the schedule of assets and liabilities provided by counsel for the wife, those two sums appeared as liabilities of the husband. In his submissions, counsel for the husband said:
3. …The Court will note the acknowledged debts of the husband being $47,500.00 borrowed to meet payment of legal fees, $27,000.00 contributed by the husband from the sale of [G] Street and $20,000.00 borrowed to pay an interim settlement sum to the wife.
The husband asserted that he owed AL and SA $47,000, $20,000 being the sum paid to the wife on settlement of the sale of G Street and applied by her to purchase a motor vehicle, $27,000 being the shortfall on the sale of the property. Whilst the husband’s financial evidence was generally unsatisfactory, and, on his own evidence, the husband has had the capacity since separation to have re-paid such borrowings, and provided no documentation or other reliable evidence in support of them, the Court proposes taking those debts into account in order to avoid the risk of double counting when evaluating the contributions of the parties.
In submissions in reply, counsel for the wife did not join issue with the contention of counsel for the husband. On balance, it is reasonable to include the husband’s indebtedness to Al and SA in the sum of $47,000. Whilst the $20,000 received by the wife from that sum could be included as an asset of hers, as it does not exist, or is referable to her purchase of a motor vehicle, and as a corresponding sum could be included by way of monies the husband volunteered that he had lost gambling in the post separation period, leaving out each of these sums does not distort the balance sheet or otherwise produce any unfairness to either party.
The husband’s Citibank and Commonwealth Bank Credit Card debts have not been shown to have had a relevant nexus with the marriage of himself and the wife. It would have been a comparatively simple matter for the husband to have tendered in evidence statements from these credit providers evidencing his indebtedness as at the date of separation. Had he done so, in the absence of evidence establishing why the Court should not do so, the indebtedness would have been likely to have been taken into account.
The indebtedness is however only sought to be proved by reference to documentation some two years later. Given the unsatisfactory nature of the husband’s evidence about his finances in the post separation period, without more than the husband has established, the Court does not accept that these liabilities should be taken into account when determining the net property of the parties to the marriage.
The wife has a superannuation interest which historically has been as high as $7000 although it may be significantly less than at present. The husband has two superannuation interests which he concedes to have a combined value of approximately $35,000.
Given the ages of the parties, the Court proposes to take their superannuation entitlements into account in the context of section 75(2) rather than to add the superannuation interests to the property otherwise available for distribution.
It remains only in the context of determining the property of the parties to the marriage to consider the Turkish dispositions.
As noted earlier, whilst the parties agree that the proceedings pending in Turkey, whatever they might be about, will proceed to some form of resolution in Turkey, Counsel for the husband submitted that the Court would notionally add back $66,500 which the husband asserted had been remitted to Turkey for the purpose of purchasing real estate in that country.
With respect to his counsel, the husband’s evidence renders that contention little short of disingenuous. Even if it is not, the evidence before this Court does not establish that the sum of $66,500 which the husband caused to be sent to the wife’s brother in 2003 is either held by her brother, or anyone else for that matter, on behalf of the wife or has otherwise been paid to the wife. What has become of it is not entirely clear.
To the extent that there is documentation which sheds any light on this topic, it has already been referred to, but to reiterate, reveals that a sum of AUD$66,139.48 was remitted to the wife’s brother in Turkey on 30 September 2003. Unlike an almost identical sum of $66,139.61, which was undoubtedly remitted the next day to Mr C, there is an issue as to whether, as the wife’s brother contends, he paid that sum to Mr C or, as counsel for the husband asserted, disbursed or otherwise benefited himself and/or his sister, the wife in these proceedings.
As noted earlier, although the wife’s brother proffered that he had a receipt evidencing the payment of the monies he received to Mr C, no such document, or document appearing to fit the description afforded it by the wife’s brother was ever tendered in evidence.
Counsel for the wife reminded the Court of the document annexed to the wife’s March 2010 affidavit [annexure “I”] which was suggested, by reference to an English translation of it, to have evidenced the payment to Mr C on 6 October 2010 of a sum of $66,139.48.
As is apparent, it is only the reference to 48 cents, as opposed to 61 cents, which suggests that this record may relate to the monies received by the wife’s brother rather than the monies received directly by Mr C. But for that, the document would do no more than confirm what has been established by other documents, namely that Mr C received approximately $66,139. Whose account the document is said to represent is not clear. The document was not referred to in the affidavit of the wife’s brother sworn some days after the wife’s affidavit. The wife does not suggest that the account is hers.
The wife asserted [paragraph 42] that the document in question evidenced the transfer by the husband to her brother of the sum of $66,139.48. That had been established by documents attached to the wife’s October 2008 affidavit.
Annexure “J”, which relates to Mr C’s bank account, provides some support for the contention of counsel for the wife given that, although imprecise, the evidence suggests that, at the time, one Australian dollar was worth approximately as much as one Turkish Lira.
The evidence in relation to this topic is sufficiently vague and unsatisfactory as to render it unsafe to make a finding on the balance of probabilities as to what became of the monies received by the wife’s brother. Some findings however can be made.
The first is that the evidence before this Court does not establish that the funds were received and/or have been retained for or on behalf of the wife. The second is that the disposition to the wife’s brother could not be said to be by or on her behalf, having been instigated by the husband. The third is that, in what manner this Court cannot suggest, the transaction is likely to be caught up in and considered as part of the pending proceedings in Turkey. It is probably sufficient for present purposes to record only that the evidence does not establish that any part of the $66,500 remitted to the wife’s brother should be taken into account, notionally or otherwise, to the detriment of the wife in these proceedings.
It remains to consider the evidence of the husband in relation to the sum of $140,000 which he freely admitted in cross-examination to having received, which can safely be said to be in some way related to the Turkish disposition.
On behalf of the wife it was submitted:
C. The proceeds of the Turkey property
This was valuable property worth at least $140,000 to which both parties had been making contributions, through their earnings, over a long period.
There is no evidence that the Turkish Courts will deal with these funds. The evidence from the husband, for example, is that some of these monies were applied in Thailand. The husband has adduced no evidence that, on the facts as he has belatedly disclosed them that to take these funds into account in Australia would work some prejudice against him eg that there would be a double dip. These monies should be treated as an asset in these proceedings. It would then fall to the husband to establish and [sic] estoppel in the courts of Turkey. The Family Court of Australia ought to address these funds as an add back in Australia: In the marriage of Allison (1981) 1 SR (WA) 248, In the marriage of Gillmore (1993) 16 FamLR 285, Nygh “Conflict of laws in Australia” 7^th edition at 504. Proceedings in relation to these monies do not stand stayed in the Family Court of Australia. There is no reason not to treat these monies as an add back: Kowaliw and Kowaliw (1981) ¶FLC 91-092 at 76,645, Townsend v Townsend (1995) FLC ¶92-569 at 81,654 and Omacini v Omacini; (2005) FLC ¶93-218 (at [69]). It is not as though the proceedings in relation to the amount of $140,000 have been stayed or that any application was made in respect of that aspect. Of course it was not until the husband was cross examined that he first gave evidence about the $140,000. [Submissions of counsel for the wife dated 29 March 2010, page 3, par C].

Section 79(2)

Two issues require consideration in this context. The first is whether the proposed division of the assets of the parties to the marriage is just and equitable. The second is whether, as she seeks, the wife should have the husband’s interest in W Street transferred to her.
So far as the first issue is concerned, the Court is satisfied that the proposed division of the property of the parties to the marriage reasonably reflects the contributions made by them over their cohabitation and subsequent to its cessation and the section 75(2) factors which are relevant in the circumstances. Awarding the wife 62 per cent of the net property of the parties translates as funds totalling $352,778 being received by her. Awarding the husband 38 per cent of the net property of the parties translates as funds totalling $216,219 being received by the husband. The difference, $136,559, is substantial. As the Court’s Reasons for Judgment reveal, the difference is largely referable to two factors. The first is the wife’s $100,000 contribution from her workers’ compensation redemption. The second relates to the husband’s failure to make a full and frank disclosure of his finances from the date of separation to the present time.
The Court has endeavoured, whilst not being “unduly cautious” with respect to the husband, adopting a punitive approach to him. To the extent that the husband will no doubt consider that the outcome of the proceedings is unfairly favourable to the wife, he has but himself to blame having elected on such a comprehensive basis as he has to fail to fully and frankly disclose relevant financial matters.
So far as the justice and equity of the orders sought by the wife are concerned, it was submitted by her counsel that:
It is apparent that the husband is not a person who ought to be trusted to show respect for court orders or that he will diligently give effect to property matters. His track record to date is to tell lies and obfuscate. He is closely aligned with the co-owners and part of his case is that the co-owners will be unwilling to buy out his share and that the [W Street] property should be devalued accordingly as lengthy 66G proceedings will be required. There is thus no alternative reasonably available other than to place the wife in charge of the sale. Neither party has put on evidence as to the willingness of a third party to act as trustee. [Submissions of counsel for the wife dated 29 March 2010, page 10].
On behalf of the husband it was submitted that:
23.The wife’s claim that the property be transferred to her is unwarranted. A transfer of the property would only incur further legal fees, both in the actual transfer, as well as securing the existing mortgage to the National Australia Bank which, presumably, would not accept the wife as the sole mortgagor.
24.The husband acknowledges that, in the event that there is no change of heart on the part of his co-owners, a s.66G application would have to be made. It is appropriate that that be done with a minimum of cost, for the benefit of both parties. Contrary to the wife’s submission, there is no evidence that the husband would fail to carry out this Court’s orders. [Submissions of counsel for the husband dated 19 April 2010 page 9, pars 23 & 24].
In reply, counsel for the wife submitted:
23.There is nothing to suggest that the wife’s standing with NAB would not be as good as or better than that of the husband. Unlike him she declaring an income. The reason for the orders which the wife seeks are to ensure that a sale moves smoothly and that the valuable rental income is paid to her during s66G proceedings and then a sale. [Submissions of counsel for the wife in reply dated 21 April 2010, page 17, par 23].
Provided that the husband tender payment to the wife within a short time frame, 60 days being considered reasonable in the circumstances, it is in the wife’s interests that she be paid in cash, rather than becoming a co-proprietor of the W Street property and then either having to commence an application pursuant to section 66G of the Conveyancing Act, or, negotiate, possibly to her detriment, with the husband’s co-owners in relation to the sum for which her interest might be liquidated.
If however after 60 days the husband has failed to pay to the wife her entitlement in full, then the husband cannot complain when the wife replaces him as a one third tenant in common of the property.

Costs

Costs will be reserved and abide the outcome of further submissions in reliance upon the decision of the Court and its reasons for such decision.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 29 April 2010