Johnson and Johnson - [2010] FamCA 978

FAMILY COURT OF AUSTRALIA

JOHNSON & JOHNSON

[2010] FamCA 978

FAMILY LAW – PROPERTY SETTLEMENT PROCEEEDINGS – Initial capital contributions of the parties not materially favouring one part as against the other – Impact on property of parties from wife’s inheritances recognised – The wife had a greater capacity to derive income, albeit, that will be reduced by having to pay the husband whatever the Court orders in these proceedings from her investment portfolio – Court ultimately persuaded that a just and equitable order would, in the circumstances be, that the wife pay to the husband the sum of $120,000.00 in order to acquire his interest in the parties’ property – Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 – Norbis v Norbis (1986) 161 CLR 513 – Kardos v Sarbutt [2006] NSWCA 11

Family Law Act 1975 (Cth)

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Norbis v Norbis (1986) 161 CLR 513
Kardos v Sarbutt [2006] NSWCA 11
Pierce v Pierce (1999) FLC 92-844

APPLICANT:

Ms Johnson

RESPONDENT:

Mr Johnson

FILE NUMBER:

PAC

4189

2009

DATE DELIVERED:

21 September 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Dubbo

JUDGMENT OF:

Coleman J

HEARING DATE:

20 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greg Kenny

SOLICITOR FOR THE APPLICANT:

Campbell Paton Taylor

COUNSEL FOR THE RESPONDENT:

Mr John Heazlewood

SOLICITOR FOR THE RESPONDENT:

North & Badgery

Orders

That within 90 days, the wife pay the husband the sum of $120,000, whereupon the husband shall do all acts and things, and execute all documents necessary to transfer to the wife absolutely and beneficially the whole of his right, title and interest in the property known as and situated at U Street (“the U Street property”), whereupon the wife shall indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings relating to the said property,
Declare that the parties’ joint tenancy of the U Street property be and is hereby severed, and that the parties do, from this time, hold their interest as tenants in common in shares of thirty one forty‑thirds to the wife and twelve forty-thirds to the husband.
That the husband have the right of exclusive occupation of the U Street property until the payment to him of the sum hereby ordered, provided that he shall maintain the property in reasonable order and condition and meet outgoings and reasonable expenses referrable to it.
That the wife give to the husband not less than 4 weeks prior notice of her intention to exercise the option to purchase the husband's interest in the U Street property created by these orders.
That, save to the extent indicated, each party retain as his or her property absolutely and beneficially, all property real or personal possessed by either of them.
That the husband forthwith resign as director of the C Business provided that the wife indemnify the husband with respect to any liability arising to or relating to the husband’s directorship of the C…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson and Johnson

Details

AGLC: Johnson and Johnson [2010] FamCA 978
Case: [2010] FamCA 978
Decision Date: 21 September 2010

CaseChat Overview and Summary

In the matter of *Johnson and Johnson*, heard by Coleman J, the dispute concerned the division of property and the financial and proprietary interests of the parties following their separation. The orders made by the court addressed the disposition of a property known as the U Street property, the parties' respective shares in it, and the husband's directorship in the C Business.

The court was required to determine the terms upon which the U Street property would be transferred, including the payment of a sum by the wife to the husband and the severance of the parties' joint tenancy. Further issues included the husband's right of exclusive occupation of the property pending payment, the wife's option to purchase the husband's interest, the division of other assets, and the husband's resignation from his directorship in the C Business, with provision for indemnification.

Coleman J ordered that the wife pay the husband $120,000 within 90 days, at which point the husband was to transfer his interest in the U Street property to the wife. The wife was to indemnify the husband against all liabilities and outgoings relating to the property. The court declared the joint tenancy severed, with the parties to hold the property as tenants in common in shares of 31/43 to the wife and 12/43 to the husband. The husband was granted exclusive occupation until payment, provided he maintained the property and met outgoings. The wife was to provide four weeks' notice of her intention to exercise the purchase option. Each party was to retain their other property, and the husband was to resign as director of the C Business, with the wife indemnifying him against any liabilities arising from his directorship. Certain effects were to be left for the wife at the U Street property.

Orders

Orders of the court

That within 90 days, the wife pay the husband the sum of $120,000, whereupon the husband shall do all acts and things, and execute all documents necessary to transfer to the wife absolutely and beneficially the whole of his right, title and interest in the property known as and situated at U Street (“the U Street property”), whereupon the wife shall indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings relating to the said property,

Declare that the parties’ joint tenancy of the U Street property be and is hereby severed, and that the parties do, from this time, hold their interest as tenants in common in shares of thirty one forty‑thirds to the wife and twelve forty-thirds to the husband.

That the husband have the right of exclusive occupation of the U Street property until the payment to him of the sum hereby ordered, provided that he shall maintain the property in reasonable order and condition and meet outgoings and reasonable expenses referrable to it.

That the wife give to the husband not less than 4 weeks prior notice of her intention to exercise the option to purchase the husband's interest in the U Street property created by these orders.

That, save to the extent indicated, each party retain as his or her property absolutely and beneficially, all property real or personal possessed by either of them.

That the husband forthwith resign as director of the C Business provided that the wife indemnify the husband with respect to any liability arising to or relating to the husband’s directorship of the C Business.

That the effects referred to in Exhibit “X” attached hereto be left for the wife at the U Street property in good order and condition upon the husband vacating that property.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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