FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAPPAS & KAPPAS (No.3) | [2017] FCCA 577 |
| Catchwords: FAMILY LAW – Property settlement – main issue in dispute is whether or not parties hold 50% of the former matrimonial home on trust for the husband’s parents – non-dislcosure. |
| Legislation: Family Law Act 1975, ss.75(2)(o), 79, 79(2), 79(4), 106A |
| Cases cited: Kappas & Kappas [2016] FCCA 420 Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MS KAPPAS |
| Respondent: | MR KAPPAS |
| File Number: | MLC 7430 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 30 January 2017 |
| Date of Last Submission: | 30 January 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Marchetti |
| Solicitors for the Applicant: | Kennedy Guy |
| The Respondent: | In person |
NOTATION: These orders have been amended pursuant to rule 16.05(2) of the Federal Circuit Court Rules 2001 to reflect the following changes to:
· Order 3(d): the deletion of the words ‘‘In payment of the balance of $41,500 to the wife” and the addition of “The husband pay the wife from his share of the sale of proceeds of Property H1 the sum of $41,500.00”; and
· Order 11: the deletion of the words “24 March” and the addition of “28 April”.
ORDERS
Within 14 days of the date of these orders, the husband and the wife do all acts and things and sign all documents necessary to close the (omitted) Bank account ((omitted)) and the funds presently deposited in the (omitted) Bank account be equally divided between the husband and the wife.
Within 14 days the husband do all acts and things to transfer to the wife the Toyota (omitted), in the wife’s possession and registered in the husband’s name.
Each party shall do all things and execute all documents necessary to cause the former matrimonial home situated at and known as Property H1, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“Property H1”) to be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:
(a)To pay all costs, commissions, conveyancing costs and other expenses associated with the sale.
(b)To discharge any mortgage, including (omitted) Bank Mortgage (omitted), and encumbrance secured over Property…
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- Kappas and Kappas (No.3) [2017] FCCA 577
- Case
- [2017] FCCA 577
- Decision Date
CaseChat Overview and Summary
The court was required to determine how various assets and liabilities would be divided between the parties. This included the equitable distribution of funds from a joint bank account, the transfer of a vehicle registered in the husband's name but in the wife's possession, and the sale of the former matrimonial home. Further issues involved the discharge of mortgages, a specific payment to be made by the husband to the wife from the sale proceeds of the matrimonial home, and the transfer of another property (Property H2) from the wife to the husband, contingent on a payment by the husband. The court also had to consider the consequences if the husband failed to make the stipulated payment, including the potential sale of Property H2.
Judge Harland's reasoning focused on achieving a fair and equitable division of the matrimonial assets. The orders reflect a detailed plan for the sale of properties, the disbursement of sale proceeds, and the transfer of ownership of various assets. The court applied principles of property adjustment under family law legislation, ensuring that costs associated with property sales were paid first, followed by the discharge of encumbrances. Specific monetary amounts were ordered to be paid, and the court provided a mechanism for the sale of Property H2 if the husband did not meet his financial obligations. The orders also clarified the parties' entitlements to other property not specifically mentioned, severed joint tenancies, and addressed the allocation of personal items.
The court made comprehensive orders for the division of property. These included the equal division of funds from a specific bank account, the transfer of a vehicle to the wife, and the sale of the former matrimonial home with proceeds distributed according to a priority list. The husband was ordered to pay the wife $600,000 upon settlement of the matrimonial home sale, after which the wife was to transfer her interest in Property H2 to the husband. If the husband failed to make this payment, Property H2 was to be sold, with proceeds divided equally. The court also ordered that each party was entitled to other property in their possession, severed joint tenancies, and specified the wife's entitlement to collect certain personal items. A Registrar was authorised to sign documents on behalf of a party who failed to do so, and parties were granted liberty to apply regarding the implementation of the orders.
Orders
Orders of the court
1.
Within 14 days of the date of these orders, the husband and the wife do all acts and things and sign all documents necessary to close the (omitted) Bank account ((omitted)) and the funds presently deposited in the (omitted) Bank account be equally divided between the husband and the wife.
2.
Within 14 days the husband do all acts and things to transfer to the wife the Toyota (omitted), in the wife’s possession and registered in the husband’s name.
3.
Each party shall do all things and execute all documents necessary to cause the former matrimonial home situated at and known as Property H1, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“Property H1”) to be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:
(a) To pay all costs, commissions, conveyancing costs and other expenses associated with the sale.
(b) To discharge any mortgage, including (omitted) Bank Mortgage (omitted), and encumbrance secured over Property H1
(c) discharge the (omitted) Bank mortgage secured upon Property H2, registered number (omitted)
(d) The husband pay the wife from his share of the sale of proceeds of Property H1 the sum of $41,500.00.
(e) The remaining proceeds be divided as to 50% to the wife and 50% to the husband.
4.
That within 14 days of the settlement of the sale of Property H1 (“the due date”), the husband pay to the wife the sum of $600,000.
5.
Simultaneously with the husband’s compliance with order 4, the wife do all acts and things to sign all documents as may be required to transfer to the husband, at the expense of the husband, all of her rights, titles and interest in the real property situated at and known as Property H2, in the state of Victoria, being the whole the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“Property H2”).
6.
In the event the husband does not make the payment by the due date, referred to in order 4, the parties shall within 7 days of the due date, each party shall do all things and execute all documents necessary to cause Property H2 to be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:
(a) Pay all costs, commissions and expenses of the sale (including transfer and conveyancing costs); and
(b) The proceeds be divided as to 50% to the wife and 50% to the husband.
7.
That pending the payment, pursuant to order 4 hereof, or completion of the sale of Property H2 pursuant to order 3 hereof, each of the husband and the wife be entitled to receive and be paid one half of the net rental income from Property H2.
8.
That the husband be responsible and pay all outgoings, rates, and charges with respect to Property H1 incurred up to and including the date of payment.
9.
In the event the husband fails to satisfy such payments, then his liability for such payments shall be adjusted from his share of the proceeds from the sale.
10.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (save for the personal property and items detailed in order 10 hereof, being property of the wife);
(b) Monies standing to the credit of the parties in any joint bank account are to be paid to the husband (save for funds in the (omitted) Bank account referred to in order 1 hereof);
(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d) Insurance policies remain the sole property of the named owner; each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders;
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
11.
That on Friday, 28 April 2017, the wife be authorised to attend Property H1 to enter, collect and remove the personal property and items listed in Schedule A of these Orders.
12.
That, in the event either party fails or refuses to sign any document or instrument, pursuant to Section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia in the Melbourne Registry be hereby authorised to sign on behalf of either party any necessary document or instrument necessary to give effect to these Orders.
13.
That the parties have liberty to apply with respect to the implementation of these orders.
14.
That all extant applications be otherwise dismissed.
SCHEDULE A
List of Personal Items:
1. Personal training equipment
2. Treadmill
3. Bicycle
4. Coffee table
5. (omitted) pen
6. Degree/certificates
7. Cook books & magazines
8. Personal training books/magazines
9. Novels
10. Pharmacy texts
11. Photo albums/holiday notes
12. Photos
13. Glory box (garage)
14. Blanket box
15. Tablecloths/napery (study wardrobe)
16. Personal documents from filing cabinets
17. Medals
18. Red overnight bag
19. Skiing clothes
20. Craft boxes
21. Boxes of ribbons (bedroom)
22. White Santa and Christmas table accessories
23. Platters – gifted to wife
24. Tea pot, cups & saucers in display cabinet
25. CDs
26. Tapestry from (country omitted)
27. Painting from (country omitted)
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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