K and H
[2007] FCWA 34
•9 MARCH 2007
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | K and H [2007] FCWA 34 |
| CORAM: | THACKRAY J |
| HEARD: | 14 NOVEMBER 2006 |
| DELIVERED: | 9 MARCH 2007 |
| FILE NO/S: | PT 4887 of 2005 |
| BETWEEN: | K |
Applicant
AND
H
Respondent
(Page 2)
Catchwords:
Property settlement - de facto marriage - contributions
Legislation:
Family Court Act 1997, s 205U(2)
Family Court Act 1997, s 205ZB(1)
Family Court Act 1997, s 205ZD(3)
Family Court Act 1997, s 205ZG(4)(d)
Family Court Act 1997, s 205ZG(4)(e)
Family Court Act 1997, s 205ZG(4)(f)
Family Court Act 1997, s 205ZG(4)(g)
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Mr L Durand |
| Respondent: | Mr K Staffa |
Solicitors:
| Applicant: | Durand Gangemi |
| Respondent: | Staffa Lawyers |
Case(s) referred to in judgment(s):
Khademollah and Khademollah (2000) FLC 93-050
(Page 3)
1 [Mr H] and [Ms K] lived in a de facto marriage relationship for many years. I am required to resolve a dispute concerning division of their property.
Orders sought
2 The orders sought by [Ms K] were set out in her amended Papers for the Judge. She wants [Mr H] to pay her $125,000, in return for which she will transfer to him the interest she has in their home in [the suburbs]. She also proposes to transfer to him the interest she has in a business they previously operated in partnership, provided [Mr H] indemnifies her in relation to the liabilities. She otherwise proposes that the parties retain the assets presently in their possession.
3 The orders sought by [Mr H] were contained in his Papers for the Judge. His primary application is for the dismissal of [Ms K]'s application on jurisdictional grounds. In the event that application is unsuccessful, he proposes not only that he keep the [suburban] property, but that [Ms K] pay him amounts totalling in excess of $34,000. He proposes that the remaining assets of the business be sold and that each party contribute equally to the liabilities remaining after disbursement of the proceeds. He otherwise agrees that the parties should retain the assets presently in their possession.
The parties and their relationship
4 [Ms K] is 52 years of age and is employed as a [carer]. Following the breakdown of her relationship with [Mr H], she married Mr [K] in September 2005.
5 [Mr H] is 57 years of age. He works as a [driver]. He is still married to his second wife, from whom he separated shortly prior to commencing his relationship with [Ms K]. He has a lady friend living in his home from time to time, but does not acknowledge having any relationship with her.
6 The parties commenced living together in about 1989 when [Ms K] moved into [Mr H]’s home [overseas]. [Ms K]’s eight-year-old son, [T], also lived with them. At the time, [Mr H] had three children, then aged about 15, 13 and 11. There is some dispute as to the amount of time they lived with the parties.
| (Page 4) | |
| 7 | In 1993, [Mr H] sold the [overseas] home. The parties then moved to another home which [Mr H] purchased in his sole name in [a nearby suburb] |
| 8 | In 1995, [Mr H] came to Australia to work. He obtained employment with a [company]. This operated by the [M] family (to whom reference will be made later). |
| 9 | [Ms K] and [T] remained living in the [overseas] home while [Mr H] was working in Australia. They joined him here in 1996. After renting for some time in Perth, they acquired a home in [the suburbs], in joint names in 1999. In the following year, the parties commenced their own business, initially in partnership with one of [Mr H]’s sons. |
| 10 | There is a dispute about when the parties’ de facto marriage relationship ended, but it is common ground that [Ms K] moved out of the [suburban] home around the middle of 2005. The business partnership was dissolved at around the same time. |
Credibility
11 I found [Ms K] to be a reliable witness. She made concessions where they were warranted and gave her evidence in an open and frank manner. She appeared also to have a fairly good memory and I found her to be generally an accurate historian.
12 [Mr H] was not quite as reliable. In particular, I regarded his evidence about when the parties’ relationship ended as being more in the nature of wishful thinking. His evidence on that point was given in the face of all the other evidence pointing strongly toward the relationship ending at the later time asserted by [Ms K]. In other respects his evidence suffered because he acknowledges he does not have a particularly good memory and is “terrible with dates”.
Jurisdiction
13 It is common ground that the parties lived in a de facto marriage relationship for many years. The jurisdictional issue arises because [Mr H] claims that the parties separated in 2001/02 and that thereafter they continued their association only as business partners. If the relationship ended when [Mr H] claims, Part 5A of the Family Court Act 1975 would not apply. This is because s 205U(2) provides that Part 5A does not apply to a de facto relationship that ended before the commencement of that Part. Part 5A, which was introduced by the
(Page 5)
Family Court Amendment Act 2002, commenced on 1 December
2002.14 I do not propose discussing the matter in any detail here, since I consider it is abundantly clear that the de facto marriage relationship did not end on the date [Mr H] now claims. I generally accept the evidence given by [Ms K] in relation to the continuation of their relationship in the period from 2002 to 2005, albeit I accept that the parties spent a good deal of time living apart because of the work that [Mr H] was doing.
15 In coming to my decision, I place particular weight on the contents of the letter [Mr H] wrote to [Ms K] in April 2005. The only reasonable inference to draw from that letter is that [Mr H] was of the view that the parties continued to be in a relationship up until that date. I also note, amongst many other things, that the parties went overseas together at a time when [Mr H] says their relationship had ended. As the topics were linked in the way the case was presented, I also record that I am satisfied that [Ms K] did not commence her intimate association with [Ms K] until after she was advised by [Mr H] in 2005 that their relationship was over.
16 I should record that [Mr H] has little credibility in relation to these sorts of issues in view of his assertion that the parties had also terminated their relationship for about a year when he came to work in Australia during 1995. His claim that the parties separated at this time is quite inconsistent with the correspondence he sent to [Ms K] whilst he was residing in Australia (see Annexure “A” to [Ms K]'s trial affidavit).
17 I am therefore satisfied that [Ms K]'s application was filed within the prescribed time and the Court accordingly has jurisdiction to determine her application. I might also observe that [Mr H]’s counsel did not seek to advance any argument on this issue in his closing oral submissions.
Property settlement approach
18 I am required to follow a four-step process in dealing with an application for property settlement pursuant to the Family Court Act 1997. These are:
• identify and value the assets and liabilities of the parties; • assess the parties’ contributions to the assets; (Page 6)
• assess a range of factors set out in s 205ZG(4)(d) to (g) of the Act; and • consider whether the order proposed is just and equitable.
The assets and liabilities
19 I find the assets and liabilities of the parties at the time of trial to
be as follows:
| Description | [Ms K] | [Mr H] |
| Assets | ||
| [suburban property] | $167,500 | $167,500 |
| [XYZ] assets (plant not yet sold, including | 14,518 | 14,518 |
| [vehicle]) | ||
| [motor vehicle] | 13,000 | |
| [motor vehicle] | 16,500 | |
| Furniture and Contents | 500 | 2,000 |
| Jewellery | 1,540 |
| Legal fees added back | 26,689 |
| Superannuation | 13,809 | 978 |
| Assets Total | $210,867 | $228,185 |
| (Page 7) | ||
| Liabilities | ||
| Westpac Bank Mortgage | 26,250 | 26,250 |
| Hire Purchase [XYZ motor vehicle] | 26,300 | |
| Liability to the [M]s | 6,000 | 6,000 |
| Westpac MasterCard | 14,026 | |
| GMAC Debt for Holden Commodore | 19,440 | |
| Debt to [Mrs L] | 22,998 | |
| Liabilities Total | $32,250 | $115,014 |
20 Almost all of the items above were agreed by the time the trial concluded. The only matters requiring any comment are discussed below.
Superannuation
21 I have included the parties’ superannuation in the list of assets although the parties chose to refer to them as “financial resources”. They are of relatively little value and there is no great prejudice to either party in adopting this course, especially given the ages of the parties.
Furniture
22 The parties agreed that [Mr H]’s furniture and effects were worth $2,000. [Ms K] says her furniture is worth $500, whereas [Mr H] claims hers is worth as much as his. I take the view that the party asserting the higher value has the obligation to provide evidence to substantiate their claim: Khademollah and Khademollah (2000) FLC 93-050 at para 32. If [Mr H] considered that [Ms K]’s furniture was worth as much as he claimed, he could have obtained a valuation.
Legal fees added back
23 [Mr H] has paid a significant amount of money by way of legal fees. I consider it appropriate to add that amount back into the pool of
(Page 8)
assets for two reasons. First, I have taken into account as a liability the money [Mr H] has borrowed from [Mrs L], which has been used to pay legal costs. Secondly, [Mr H] liquidated his superannuation after the separation and used $6,550 from that money to pay his lawyers.
Credit card debt
24 [Ms K] asserts that the MasterCard credit card was [Mr H]’s personal card rather than a business card. This seems to me to be immaterial, since there is no evidence to suggest that credit incurred on the card was for anything other than legitimate purposes. Either way the debt should be taken into account.
Money owed on husband’s vehicle
25 [Ms K] argued in one of her affidavits that the debt incurred by [Mr H] in acquiring a new motor vehicle after separation should not be taken into account. That argument did not appear to be strongly presssed at trial. In any event, I am not satisfied that [Mr H] could have made do with the truck as [Ms K] suggested.
Moneys owed to the [M family]
26 It is common ground that in July 1999 the parties acquired equipment from the [M] family in order to allow them to commence their own [similar] business, which was known as [XYZ]. It is common ground that the purchase price was $50,000 and that a number of payments have been made in reduction of this liability.
27 [Mrs M] swore an affidavit, which was filed only shortly prior to trial, in which she claimed the debt owed to her family stood at more than $37,000. [Ms K] claims that the [M] family was owed only $12,000 at the time of separation. She says she was in a good position to know this because she did the books of the business. [Mr H] said in his trial affidavit that he considered the [M family] were owed only $22,000.
28 [Mrs M] asserted in her affidavit that interest was payable on any part of the purchase price still owing after two years from the date the parties took possession of the plant and equipment. She says the rate was 12% per annum. [Mr H] acknowledges that the loan carried interest after the first two years, whereas [Ms K] denies that there was any agreement relating to payment of interest. Although she did not
(Page 9)
say so in her affidavit, [Ms K] volunteered in the course of her oral
evidence that [Mr H] had told her the loan was interest-free.29 When first asked about the subject of the payment of interest when giving oral evidence, [Mr H] said the subject never arose at the time he entered into his arrangements with [Mr M] in 1999. [Mr H] said he only became aware that interest was being charged during the course of the current proceedings when the [M family] were approached to obtain confirmation of the amount of the outstanding debt. Nevertheless, he said he presumed the [M family] were correct in asserting that interest was payable at the rate of 12% per annum.
30 The loan agreement with the [M family] was not documented. In February 2000, [Mr M] wrote to [Mr H] referring to the agreement for the purchase of the plant and equipment. The letter went on to say “we note also, that the sale price, pursuant to the sale and purchase agreement which was orally read between us, was $50,000 (Fifty Thousand Australian Dollars) plus interest”. [Mr M] then said it was necessary for the “record keeping” of his family’s business that there be a record of the transaction. The letter asked [Mr H] to sign an attached page of the correspondence and return it “in order for us to keep our accountants happy”.
31 [Mr H] duly signed the document which was attached to the correspondence; however, this document merely referred to the purchase of specified items of equipment for a price of $50,000. There was no mention of interest in the document Mr [Mr H] signed. In my view, the [M family] would be on shaky ground in endeavouring to assert a claim for interest on the outstanding debt. There is nothing in writing to establish that it was agreed interest would be paid, let alone at a rate as high as 12% per annum.
32 [Mrs M] was not available to be cross-examined on the contents of her affidavit. Furthermore, her claims relating to the payment of interest were hearsay. Accordingly, no weight could be placed on her affidavit. In these circumstances, I am not prepared to find that the [XYZ] business has any obligation to repay more than $12,000 to the [M]’s business. I accept, however, that there is a possibility that the amount owing is larger than $12,000. I therefore do not propose making an order that would have the effect of leaving one party to carry full responsibility for any larger amount. Instead, I propose to:
| (Page 10) | ||||||
| • | order that $12,000 from the proceeds of sale of the [suburban] property be set aside in an account in joint names to be disbursed in accordance with the parties’ joint directions in discharge of the [M family] debt; | |||||
| ||||||
| 33 | Both counsel indicated that orders something along these lines would be the appropriate way to resolve this issue. I will nevertheless give them an opportunity to be heard on the precise form of orders I propose to make. |
Secret account/undisclosed funds
34 [Ms K] believed that [Mr H] had a “secret account”, but I was not persuaded that he was hiding any money.
Contributions
35 I turn now to consider the contributions the parties made during the course of their relationship, which I find extended from about 1989 until 2005, a period of about 16 years.
36 [Ms K] submitted that the parties’ financial and non-financial contributions were of equal value, but claimed that contributions to the welfare of the family should be assessed 80:20 in her favour. [Mr H] submitted that financial and non-financial contributions should be assessed 90:10 in his favour. As for contributions to the welfare of the family, he says there was no family but such contributions as were made should be assessed as having been made equally.
Initial contributions
37 [Mr H] owned the house [overseas], at the commencement of his relationship with [Ms K]. He had owned the property since 1981 but it was subject to a mortgage. When he separated from his second wife
(Page 11)
in 1998, he had to refinance the mortgage in order to acquire her
interest in the property. [Mr H] gave no evidence to indicate:how much the property had cost;
• how much he originally owed on the property; • how much he borrowed to pay his second wife; • how much the property was worth at the time he commenced his relationship with [Ms K] (in opening [Mr H]’s counsel said the property was worth $80,000, but there was no evidence to support this assertion); • how much he borrowed in 1990 to make some improvements to the property (this further borrowing was secured by second mortgage on the [overseas] property). 38 [Ms K] claimed in her affidavit that the [overseas] property was worth about $40,000 at the commencement of cohabitation. In her oral evidence she said she had no idea how much the property was worth. In the absence of any evidence or admission, it is impossible to determine the extent of [Mr H]'s initial contribution.
39 [Ms K] did concede that [Mr H] had “slightly more” than she had at the commencement of cohabitation. She said he had a full household of furniture and she also thought he had about $10,000 at the time, although she did not know whether this was in cash or in the form of equity in his home. When pressed as to the source of her knowledge, [Ms K] said she had just taken [Mr H]’s word that he had more assets than she did when they commenced living together. (Presumably he also had some means of transportation, although he did not say so in his evidence.)
40 [Ms K] had received $34,000 in cash in a property settlement with her former husband prior to commencing her relationship with [Mr H]. She gave oral evidence that she had $14,000 remaining in the bank at the time she commenced living with [Mr H]. She had used some of her property settlement to acquire what she described as “almost a household full of furniture”. She also had a fairly new car. She gave no evidence of the value of her furniture or her car.
41 [Mr H] sold the [overseas] home in 1993 and purchased another home [in a nearby suburb]. He gave no evidence in his affidavit about how much he received on sale of the [initial overseas] property. In his
(Page 12)
oral evidence he said the selling price was $110,000 and that he thought he had a mortgage of about $65,000 at the time of sale. If this were true, he would have had available $45,000, less the costs of sale.
42 [Mr H] gave no evidence in his affidavit about how much the [second overseas] property cost. All he said was that he used the sale proceeds of the [first ] property to pay for [nearby property] and that he borrowed about $55,000 to complete the purchase. In his oral evidence he said the [second] property cost about $80,000. If this were true, it would seem more likely than not that he did not have more than $25,000 left over from the [first] property after discharging the debt related to that property. There was no suggestion that he held back any of the proceeds of sale of [the first property] in order to fund improvements to the [second] property, which he said in his oral evidence was in run down condition. In fact, he said in his affidavit he had to borrow $10,000 in 1994 to effect the renovations/improvements.
43 Whilst it was an important part of [Mr H]’s case that he had made a much greater initial contribution than [Ms K], he failed to provide the most basic information that would allow me to determine whether this was true or not. At most, the evidence suggests that some years after the parties commenced living together, [Mr H] had equity in his home not exceeding $25,000. Indeed, if what his counsel submitted in opening was correct (i.e. that the property was worth $80,000 at commencement of cohabitation ) and if there was still $65,000 owing on the mortgage at the time of sale as [Mr H] recalled, the equity in the home would have been, at most, $15,000.
44 Accordingly, even if [Mr H] did have “a little more” than [Ms K] when they commenced living together, there is no way I am able to quantify the differential.
45 Having failed to quantify his initial contribution, [Mr H] then presented his case as if every dollar that later came from the sale of the [overseas] property should be treated as being his contribution to the marriage. I do not consider this is an appropriate approach, since not only is there is no evidence to show that he contributed much more at the outset than [Ms K], but also the property was not ultimately sold until 2000, which was more than 10 years into the parties’ relationship.
| (Page 13) | |
| 46 | I should say that I do accept that the proceeds of sale of the [second] property were used in the manner claimed by [Mr H]. In part, the proceeds paid off the $18,000 additional borrowing which had been secured against the title to the property to pay the deposit on the [suburban] property. The balance of $44,685 was used to reduce the [suburban] mortgage. |
Financial and non-financial contributions during the relationship
47 Notwithstanding the strenuous efforts made by [Mr H] to persuade me to the contrary, I was satisfied this was a fairly normal domestic relationship in which both parties worked hard in order to further their financial position and to provide a satisfactory lifestyle for themselves. [Mr H] worked at all times (often in very trying conditions, both when he was employed by others and when he was working for himself). [Ms K] routinely worked for income herself (save for the last few years of the relationship) and assisted [Mr H] as and where she could. For example, she helped in his [gardening] business [overseas]. She had paid employment with the same company that employed [Mr H] in Australia. She sometimes went with him on road trips even if she was not herself employed to do so. She did the books of the business. I am also satisfied [Ms K] did some maintenance and gardening around their homes as she claimed. She looked after their homes (both in Australia and [overseas]) whilst [Mr H] was spending extensive periods of time working away.
48 [Mr H] attempted to paint a picture of [Ms K] keeping all her income for herself and siphoning off money from the business for her own benefit. [Ms K] strongly disputes this and says they each contributed their funds and efforts in different ways, but that each contributed to the full extent of their capacity. I accept her characterisation of their relationship and the way in which their funds were managed. I note there is little more than innuendo and supposition to support the suggestion that [Ms K] was extravagant or squirreled money away for her own benefit – save for relatively modest amounts she provided for [T].
49 I can appreciate that [Mr H] wondered at the end of the relationship why they seemed to have so little to show for so many years of hard work, but regrettably such is life. It is not uncommon in this jurisdiction to see a party to the relationship who works away from home wondering what has become of all their hard earned
(Page 14)
income when they return home. The reality is that neither of the parties was a high income earner and the business was not especially profitable. It is not surprising that there was not a great deal left over after all necessary and reasonable expenses were met, including some overseas travel. It is true that [Ms K] was unable to account for every dollar that had been drawn from the parties’ funds, but in my view it is unreasonable to expect her to do so. This was a de facto marriage not a business enterprise.
50 Before leaving this discussion on contributions during the relationship, it is appropriate to observe that [T] lived with the parties from around the time the relationship commenced in about 1989 until about 1996, soon after the parties settled in Perth. [T]’s father paid no child support and it does not appear [T] had any income during the time he lived with the parties. [T] was therefore supported throughout the relationship with income that would otherwise have been available for use by the parties.
51 On the other hand, two of [Mr H]’s three children lived with the parties for a period of time. Their mother paid no child support and accordingly they too were supported from income that would otherwise have been available to the parties. There was a dispute as to how long Mr [Mr H]’s children lived with the parties. [Mr H] says they left within 12 months of the commencement of cohabitation, whereas [Ms K] says they remained somewhat longer. Whatever the period may have been during which they lived with the parties, [Mr H] acknowledged that he continued to provide his children with some financial support from time to time. There was insufficient evidence concerning the extent of financial support provided to the children to allow me to come to any finding which would have an impact on the assessment of contributions.
Contributions to the welfare of the family
52 I am satisfied that [Ms K] undertook the great bulk of the domestic duties when the parties were living in the same home. It is the case, however, that at times during the relationship (more so in the last few years), the parties spent long periods of time living apart. They each fended for themselves in those periods, save that [Ms K] remained responsible for looking after their jointly owned property.
53 I am also satisfied that [Ms K] was largely responsible for looking after [Mr H]’s children during the time they spent living with
(Page 15)
the parties [overseas]. On the other hand, there was no suggestion by
[Mr H] that he did anything to look after [T].54 Although the matter was not the subject of any submissions, there is an issue as to whether or not contributions [Ms K] made to [Mr H]’s children could be taken into account as a contribution within the meaning of s 205ZG(4)(c). This subsection relates to contributions made to the welfare of the family “constituted by the de facto partners and any children of the de facto partners”. Reference to the relevant definition section (s 205T) suggests that the parties’ children from their prior relationships are probably not “children of the de facto partners” for present purposes. I have, however, chosen to discuss those sorts of contributions briefly here, since any contribution either party made for the benefit of the child of the other party is a matter that justice and equity would require be taken into account under s 205ZD(3)(o).
Contributions after termination of relationship
55 [Ms K] suggested in her Papers for the Judge that one issue to be determined was “waste or negative contribution” on the part of [Mr H], but I was not satisfied this was made out on the evidence. Counsel for [Ms K] conceded in his closing address that there was no evidence of any extravagance on the part of [Mr H] and I am satisfied he managed the parties’ business assets in the period after separation as best he could in order to deal with their many debts.
56 [Mr H] did liquidate his superannuation after separation. He received over $18,000, which I infer from the evidence was entirely accumulated during the period of the parties’ relationship. Included in his entitlements was a contribution in excess of $7,000 paid from the parties’ business in the same year as they separated. As I consider the contributions by the parties during the relationship were of roughly equal value, I consider the parties should be seen as having contributed equally to this superannuation entitlement. However, I do not see the disbursement of the superannuation moneys as evidence of any wastage on the part of [Mr H], since it appears that the funds were used to meet legitimate debts and to cover legal costs (the latter being added back into the asset pool).
57 [Mr H] seeks a substantial adjustment in his favour based upon the payments he made following the separation. I accept his evidence (in paragraphs 71, 76 and 136 of his affidavit) about the payments he
(Page 16)
has made in reduction of liabilities and in meeting periodical outgoings relating to the former business of the parties and the home. In considering those contributions, however, a number of matters need to be taken into account, including these:
• Some of the payments were made from the proceeds of sale of the assets of the jointly owned business. [Mr H] received over $11,000 for the items he sold. • Part of the payments came from liquidation of [Mr H]’s superannuation entitlements, which I have found should be treated as being accumulated by the joint efforts of the parties; • Part of the payments were made by credit card, thereby increasing the balance owing. The increased debt on this credit card has been taken into account in arriving at the asset pool available for division; • [Mr H] has had the use of the former matrimonial home since separation. [Ms K] did suggest to him after separation that he could move out; the home could be let; and the parties could together meet any shortfall. He declined. 58 [Mr H] also claimed that [Ms K] should be treated as having received an advance of $10,000 on her settlement as a result of having drawn that amount from the mortgage after separation. I do not accept that proposition. I accepted [Ms K]’s evidence concerning the way this money was used. I note also that [Mr H] drew about $6,000, but this was used in order to pay off a credit card debt.
59 I am satisfied that since separation both parties have been doing their best to earn an income and meet their own living expenses. Mr [Mr H] did register a business name (“XYZRM”) in the hope of establishing a new …business, but I am satisfied that he has done little work through this business and instead has been mainly working for wages.
Assessment of contributions
60 I have found that even if [Mr H] made a slightly greater contribution than [Ms K] at the commencement of the relationship, there was insufficient evidence to allow this to be quantified. I find that contributions during the relationship were equal. I also find that contributions after the end of the relationship were equal and that there is no evidence of wastage by either party. In these
(Page 17)
circumstances, I conclude that the parties’ contributions overall were
of equal value.
Section 205ZD(3) and other factors
61 I would ordinarily now turn to consider whether or not there should be any adjustment to the outcome based upon the matters referred to in s 205ZG(4)(d) to (g) inclusive (which amongst other things requires the court to consider the matters referred to in s 205ZD(3)). In their closing submissions both counsel agreed that there should be no adjustment, regardless of what finding I made in relation to contributions. Having considered the matters that would be relevant in such an assessment, I accept the concession made by both parties on this point was warranted. There will be no adjustment.
Just and equitable?
62 As the final step in the process, I am required to stand back and consider whether or not the outcome is just and equitable. I have some reservations in determining that the outcome is just and equitable, since in some respects I have been asked to make a determination based on inadequate evidence. In particular, it is of concern that [Mr H] did not provide sufficient evidence to allow me to determine to what extent his initial contribution might possibly have exceeded that of [Ms K]. However, my obligation is to determine the matter on the basis of the evidence that was provided. Taking that evidence into account, I consider the outcome to be just and equitable.
Orders
63 [Mr H] went to quite some trouble to explain how difficult it would be for him to be able to acquire [Ms K]’s interest in the [suburban] property if he was required to pay her a settlement along the lines she was seeking. I appreciate the difficult financial position in which [Mr H] would find himself; nevertheless, I consider that much of what he had to say on this issue was quite irrelevant to the matters the Court is required to take into account. [Mr H] did say that if the Court ordered him to pay more than he offered, the property would have to be sold. As the orders I propose to make require him to pay far more than he offered I intend to frame my orders accordingly.
64 Subject to hearing from counsel, I propose making the following
orders:
(Page 18)
1. The applicant, [Ms K], and respondent, [Mr H], be appointed as trustees for sale of:
(a) the property situate at, [suburban address] being the whole of the land in Certificate of Title Volume xxxx Folio xxx; (b) the [XYZ motor vehicle]; and (c) the remaining plant and equipment of the [XYZ] business. 2. The applicant and respondent shall cause the proceeds of sale of the aforesaid assets to be disbursed in the manner following:
(a) in payment of the expenses of sale; (b) in discharge of the mortgage registered against the title to the [suburban] property; (c) in payment of the outstanding hire purchase commitment relating to the [XYZ motor vehicle]; (d) in payment of $12,000 to be held in accordance with the provisions of paragraph 7 of these orders; (e) in payment to the respondent of the first $39,146 from the proceeds of sale; (f) in disbursement of the balance in equal shares between the parties. 3. The applicant shall forthwith transfer and assign to the respondent all of her right, title and interest in any other assets presently in the possession of the respondent or registered in his name, including the [motor vehicle] and the household furniture and contents situate in and about the [suburban] property.
4. The respondent shall forthwith transfer and assign to the applicant all of his right, title and interest in the property presently in the possession of the applicant or registered in her name, including the [motor vehicle], her household furniture and contents and her jewellery.
(Page 19) 5.
Each party shall retain their respective superannuation entitlements.
6.
The respondent shall pay the mortgage payments and all other outgoings associated with the [suburban] property pending settlement of the sale of the property.
7.
The respondent shall indemnify the applicant in relation to any liability concerning the Mastercard.
8.
The applicant and the respondent shall cause the aforesaid sum of $12,000 to be held or disbursed in such manner as may be agreed by the parties but if not otherwise agreed, to be held in an interest-bearing trust account in the joint names of the parties with both their signatures required to remove any funds pending further order regarding settlement of the [M family] debt.
9.
The applicant and the respondent shall each be responsible for one-half of any liability they may be found to have to the [M] family in relation to the acquisition of the plant and equipment for the [XYZ] business.
10.
The applicant and respondent each be restrained and an injunction is hereby granted restraining them from compromising the [M family] claim or making any admission of liability in relation to the claim without the written consent of the other party.
11.
The applicant and respondent each have liberty to apply to the court in relation to any matter pertaining to the [M] debt, including but not limited to the discharge of the aforesaid injunction and payment of the said debt.
12. The Application and Response be otherwise dismissed.
(Page 20)
I certify that the preceding [64] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
0
7