Kelby and Kelby (No. 2) - [2020] FamCA 816

FAMILY COURT OF AUSTRALIA

KELBY & KELBY (NO. 2)

[2020] FamCA 816

FAMILY LAW – PROPERTY – Application for final property settlement – Where the parties’ cohabitation and marriage was for a period of 25 years and where the parties have been separated for 21 years – Where, for the purposes of these proceedings, the husband is found to hold the whole of the equitable interest in the property in which he lives by way of resulting trust – Discussion of s 79(4) considerations and what alteration of property was just and equitable.

Family Law Act 1975 (Cth) Pt VIIIAB, ss 75, 79

Family Law Rules 2004 (Cth) r 13.14

Calverley v Green (1984) 155 CLR 242,
Gosper v Gosper (1987) FLC 91-810
Hill v Dunn (2019) NSWSC 419
Kelby & Kelby [2016] FamCA 698
Kessey v Kessey (1994) FLC 92-495
Muschinski v Dodds (1985) 160 CLR 586
Ryan v Ryan [2012] NSWSC 636
Zyk v Zyk (1995) 128 FLR 28

APPLICANT:

Ms Kelby

RESPONDENT:

Mr Kelby

FILE NUMBER:

SYC

8071

2014

DATE DELIVERED:

25 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

25 - 29 May 2020;

18 June 2020; 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fernon

SOLICITOR FOR THE APPLICANT:

Yates Beaggi Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Gillies, SC

SOLICITOR FOR THE RESPONDENT:

McGirr Lawyers

Orders

Pursuant to s 79 Family Law Act 1975 (Cth), an order is made in accordance with paragraphs 2 to 12.
Within 42 days of the date of these orders the wife shall:
(a)transfer to the husband the whole of her right title and interest in all shares held by her in J Pty Ltd ACN … (the company); and
(b)resign as a Director of the company.
The husband or his lawyer shall prepare all necessary documents including a transfer and resignation to give effect to paragraph 2.
The husband be responsible for any payment of duties, costs and fees (other than the cost of the execution by the wife of the documents referred in paragraph 3) to give effect to this order.
Within 42 days of the date of these orders, the wife shall pay to the husband the sum of $339,296 and contemporaneously with that payment, the husband shall transfer to the wife all of his right, title and interest in the property at G Street, Suburb H, New South Wales (“Property I”).
The wife and her lawyer shall prepare all necessary documents including a transfer of Property I in registerable form to give effect to paragraph 5.
The wife be responsible for any payment of duties, costs and fees (other than the cost of the execution by the husband of the documents referred in paragraph 6) to give effect to this order.
In the event that the wife does not comply with paragraph 5 the parties shall do all acts and things including signing all documents to cause Property I to be listed for sale and for…

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 Kelby and Kelby (No. 2)

Details

AGLC: Kelby and Kelby (No. 2) [2020] FamCA 816
Case: [2020] FamCA 816
Decision Date: 25 September 2020

CaseChat Overview and Summary

In *Kelby and Kelby (No. 2)*, Watts J of the Family Court of Australia made property settlement orders between the husband and wife. The dispute concerned the division of the parties' assets and liabilities, including shares in a company and a property located at G Street, Suburb H, New South Wales.

The court was required to determine the terms of the property settlement, including the transfer of specific assets and the payment of a sum of money between the parties. The orders also addressed the responsibilities for costs and duties associated with the property transfers and the procedure to be followed in the event of non-compliance with the settlement terms, particularly concerning the sale of the G Street property.

Watts J applied section 79 of the *Family Law Act 1975* (Cth) to make the property settlement orders. The court ordered the wife to transfer her shares in J Pty Ltd to the husband and resign as a director of the company. In return, the wife was to pay the husband a sum of $339,296, and the husband was to transfer his interest in the G Street property to the wife. The orders stipulated detailed provisions for the sale of the G Street property should the wife fail to make the payment, appointing the husband as trustee for the sale with extensive powers. The proceeds of any sale were to be disbursed according to a specific percentage split, with a further adjustment mechanism if the sale price exceeded or fell below $3,000,000. The court also declared each party to be the sole owner of property in their possession and solely responsible for debts in their name, except as otherwise provided. Finally, the court made provision for the Registrar to execute documents if a party refused to do so and granted leave to relist the matter for implementation issues.

Orders

Orders of the court

Pursuant to s 79 Family Law Act 1975 (Cth), an order is made in accordance with paragraphs 2 to 12.

Within 42 days of the date of these orders the wife shall:

(a) transfer to the husband the whole of her right title and interest in all shares held by her in J Pty Ltd ACN … (the company); and

(b) resign as a Director of the company.

The husband or his lawyer shall prepare all necessary documents including a transfer and resignation to give effect to paragraph 2.

The husband be responsible for any payment of duties, costs and fees (other than the cost of the execution by the wife of the documents referred in paragraph 3) to give effect to this order.

Within 42 days of the date of these orders, the wife shall pay to the husband the sum of $339,296 and contemporaneously with that payment, the husband shall transfer to the wife all of his right, title and interest in the property at G Street, Suburb H, New South Wales (“Property I”).

The wife and her lawyer shall prepare all necessary documents including a transfer of Property I in registerable form to give effect to paragraph 5.

The wife be responsible for any payment of duties, costs and fees (other than the cost of the execution by the husband of the documents referred in paragraph 6) to give effect to this order.

In the event that the wife does not comply with paragraph 5 the parties shall do all acts and things including signing all documents to cause Property I to be listed for sale and for that purpose the husband shall be appointed as the trustee for the sale of the property and shall have the power to:

(a) appoint a real estate agent to act on the sale;

(b) appoint a lawyer to act upon the sale;

(d) nominate the minimum reserve price or contract price as the case may be;

(e) nominate what repairs, if any, should be made to the property;

(f) sign all documents to give effect to the sale;

(g) disburse the sale proceeds in accordance with these orders.

In the event that Property I is sold the proceeds of sale shall be disbursed as follows:

(a) the costs, expenses and commission of the real estate agent or agents acting on the sale of the property;

(b) the costs, fees and disbursements of the lawyer or lawyers acting for the parties on the sale of the property;

(d) the cost of any necessary repairs to the property as recommended by the agents, and authorised by the husband;

(e) 11.3% to the husband;

(f) 88.7% to the wife;

(g) in the event that Property I sells for more than $3,000,000, the wife shall receive 45% of the increase and the husband shall receive 55% of the increase but in the event that Property I sells for less than $3,000,000, then the wife will bear 45% of that decrease and the husband will bear 55% of that decrease.

10.

The wife do all things and acts, sign all documents, and give all consents necessary to give force and effect to these orders including:

(a) making sure that the real estate agent has access to the property upon a request to do so;

(b) ensuring that the home and grounds are presented in a clean and tidy state prior to any open house or inspection;

(c) ensuring that the real estate agent is provided with a set of keys and access passes/ devices to gain entry to the property;

(d) ensuring that she does no act or thing that might discourage or dissuade a purchaser from purchasing the property;

(e) ensuring that the property is vacant at any open house or inspection.

11.

Except as provided, each party is declared to the sole owner of any property in their possession at the date of these orders including bank accounts, business items, furniture and personal effects, shares, debentures and interests in any superannuation fund.

12.

Except as otherwise provided each party is declared to be solely responsible for any debt standing in their sole name as at the date of the making of these orders and shall indemnify the other party in relation to them.

13.

In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to all any of these orders made that the Registrar of the Family Court at Sydney be appointed pursuant to s 106A to execute the deed or instrument in the name of the wife and to do all other acts and things necessary to give validity and operation of the deed or instrument and the wife pay the costs of the husband on a solicitor/client basis in relation to obtaining the Registrar's signature.

14.

The parties have leave to relist the matter on seven days’ notice in respect of the implementation of the property settlement order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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