Kellner and Kellner and Anor - [2016] FamCA 216

FAMILY COURT OF AUSTRALIA

KELLNER & KELLNER & ANOR

[2016] FamCA 216

FAMILY LAW – PROPERTY – final orders – where consideration is given to section 90SF of the Family Law Act 1975 (Cth) as it relates to financial matters relating to de facto relationships – where the parties were in a de facto relationship for 22 years – where consideration is given to an alternation of property interests – where there is an intervener – where the de facto wife’s evidence is preferred to that of the de facto husband and the intervener – where orders are made for just and equitable property settlement 66 per cent in favour of the wife – where the de facto husband is required to pay monies to the de facto wife and the intervener.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 90SB 90SF, 90SM, 106A
Limitation Act 1981 (NT)

Vass & Vass [2015] FamCAFC51

DE FACTO WIFE:

Ms Kellner

DE FACTO HUSBAND:

Mr Kellner

INTERVENER:

Ms King

FILE NUMBER:

DNC

439

2012

DATE DELIVERED:

8 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

23-24 April 2015;
27-30 April 2015;
1 May 2015;
27-29 July 2015

REPRESENTATION

COUNSEL FOR THE DE FACTO WIFE:

Ms Farmer

SOLICITOR FOR THE DE FACTO WIFE:

Withnalls Lawyers

COUNSEL FOR THE DE FACTO HUSBAND:

Mr Black (until 1 May 2015)

Mr Hanlon
(with Mr Connop) (from 27 July 2015)

SOLICITOR FOR THE DE FACTO HUSBAND:

Cecil Black Family Lawyers (until 16 June 2015)

Connop Barristers & Solicitors (from 22 July 2015)

COUNSEL FOR THE INTERVENER:

Mr Baldry

SOLICITOR FOR THE INTERVENER:

William Forster Chambers

Orders

Within sixty [60] days the de facto husband Mr Kellner pay to the de facto wife Ms Kellner the sum of TWO HUNDRED AND TWELVE THOUSAND DOLLARS [$212,000.00].
Within thirty [30] days the de facto husband Mr Kellner pay to the intervener Ms King the sum of ONE HUNDRED AND FORTY FIVE THOUSAND SIX HUNDRED AND TWENTY TWO DOLLARS [$145,622.00].
Within fourteen [14] days the de facto husband MR KELLNER sign all documents necessary to effect a discharge of any mortgage and transfer to the de facto wife Ms Kellner all of his right, title and interest in the following estates:
(a)Property B from Plan(s) … otherwise known as C Street, Suburb D in the Northern Territory;
(b)Property E from Plan(s) … otherwise known as F Street, Suburb D in the Northern Territory.
Upon payment by the de facto husband Mr Kellner to the de facto wife Ms Kellner of the sum of TWO HUNDRED AND TWELVE THOUSAND DOLLARS [$212,000.00] the de facto wife Ms Kellner do all acts and things necessary to arrange a discharge of the Bank SA loan … in the name of Mr Kellner & Son Pty Ltd and refinance the loan indemnifying the de facto husband Mr Kellner and second respondent Mr G Kellner with respect to the loan.
Pursuant to s.106A of the Family…

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 Kellner and Kellner and Anor

Details

AGLC: Kellner and Kellner and Anor [2016] FamCA 216
Case: [2016] FamCA 216
Decision Date: 8 April 2016

CaseChat Overview and Summary

This case concerned the division of property and financial matters between a de facto couple, Mr. Kellner and Ms. Kellner, with an intervener, Ms. King. The dispute involved numerous properties, bank accounts, investments, and tax liabilities. Dawe J presided over the proceedings.

The court was required to determine the equitable distribution of assets and liabilities between the de facto partners, including the allocation of specific properties, financial accounts, and the responsibility for various tax obligations, such as capital gains tax and partnership income. The court also needed to address the role of the intervener, Ms. King, in relation to the property and financial settlements.

Dawe J applied principles of property adjustment and financial settlement in de facto relationships, likely drawing upon relevant provisions of the *Family Law Act 1975* (Cth), particularly section 106A which allows for the appointment of the Registrar to execute documents. The reasoning involved a comprehensive assessment of the parties' financial positions and contributions, leading to specific orders for the transfer of property, payment of sums of money, and indemnities for tax liabilities. The court aimed to achieve a final and comprehensive resolution of the financial relationship between the parties.

The court made detailed orders regarding the payment of specific sums of money between the parties, the transfer of various properties, and the allocation of investments and bank accounts. These orders included provisions for the discharge of mortgages, the sale of certain properties with proceeds to be applied in a specified manner, and the appointment of the Registrar to execute documents on behalf of parties who failed to do so. The de facto wife was largely allocated a greater proportion of the assets and was ordered to indemnify the de facto husband and intervener in relation to certain liabilities. The initiating application was dismissed, with costs to be determined at a later hearing.

Orders

Orders of the court

Within sixty [60] days the de facto husband Mr Kellner pay to the de facto wife Ms Kellner the sum of TWO HUNDRED AND TWELVE THOUSAND DOLLARS [$212,000.00].

Within thirty [30] days the de facto husband Mr Kellner pay to the intervener Ms King the sum of ONE HUNDRED AND FORTY FIVE THOUSAND SIX HUNDRED AND TWENTY TWO DOLLARS [$145,622.00].

Within fourteen [14] days the de facto husband MR KELLNER sign all documents necessary to effect a discharge of any mortgage and transfer to the de facto wife Ms Kellner all of his right, title and interest in the following estates:

(a) Property B from Plan(s) … otherwise known as C Street, Suburb D in the Northern Territory;

(b) Property E from Plan(s) … otherwise known as F Street, Suburb D in the Northern Territory.

Upon payment by the de facto husband Mr Kellner to the de facto wife Ms Kellner of the sum of TWO HUNDRED AND TWELVE THOUSAND DOLLARS [$212,000.00] the de facto wife Ms Kellner do all acts and things necessary to arrange a discharge of the Bank SA loan … in the name of Mr Kellner & Son Pty Ltd and refinance the loan indemnifying the de facto husband Mr Kellner and second respondent Mr G Kellner with respect to the loan.

Pursuant to s.106A of the Family Law Act 1975 (Cth), the Registrar or Deputy Registrar of the Family Court of Australia at Darwin be appointed to execute all deeds or instruments and sign all documents and things necessary in relation to Property E from Plan(s) … otherwise known as F Street, Suburb D in the Northern Territory and Property B from Plan(s) … otherwise known as C Street, Suburb D in the Northern Territory and for and on behalf of the de facto husband Mr Kellner and intervener Ms King upon presentation to the Registrar of an affidavit as to the request made to the de facto husband Mr Kellner and intervener Ms King to execute documents and their failure to do so within seven [7] days of presentation to them of the instrument to sign.

Within fourteen [14] days the de facto husband Mr Kellner and the intervener MS KING sign all documents necessary to effect a discharge of any mortgage and transfer to the de facto wife Ms Kellner all of their right, title and interest in Property H from Plan(s) … otherwise known as I Street, Suburb K in the Northern Territory which property is hereafter declared to be the sole property of the de facto wife Ms Kellner free from any claim by the de facto husband Mr Kellner or the intervener Ms King.

Pursuant to s.106A of the Family Law Act 1975 (Cth), the Registrar or Deputy Registrar of the Family Court of Australia at Darwin be appointed to execute all deeds or instruments and sign all documents and things necessary in relation to Property H from Plan(s) S2006/209 otherwise known as I Street, Suburb K in the Northern Territory and for and on behalf of the de facto husband Mr Kellner and intervener Ms King upon presentation to the Registrar of an affidavit as to the request made to the de facto husband Mr Kellner or intervener Ms King to execute deeds or instruments necessary in relation to I Street, Suburb K and their failure to do so within seven [7] days of presentation to them of the instrument to sign.

The de facto wife Ms Kellner indemnify the de facto husband Mr Kellner and intervener Ms King in relation to all and any capital gains tax applicable from the transfer or sale of Property H from Plan(s) … otherwise known as I Street, Suburb K in the Northern Territory.

Pursuant to s.106A of the Family Law Act 1975 (Cth), the Registrar or Deputy Registrar of the Family Court of Australia at Darwin be appointed to execute all deeds or instruments for an on behalf of the de facto husband Mr Kellner and sign all documents and things necessary to give effect to the sale of Property L from Plan(s) … otherwise known as M Street, Suburb K in the Northern Territory (“the M Street property”) with the de facto wife Ms Kellner to nominate the agent, sale price and execute any contract accepting any offer agreed by the de facto wife.

10.

The proceeds of sale of the M Street property to be used:

(a) to pay the reasonable expenses of the sale including agent’s commission and legal costs and disbursements;

(b) to discharge any mortgage secured on the property;

(d) to pay the remaining balance (if any) to the de facto wife.

11.

The funds held in Withnalls Trust Account being joint funds of the de facto wife Ms Kellner and de facto husband Mr Kellner arising from the sale of Property N from Plan(s) … otherwise known as O Street, Suburb P in the Northern Territory and … Property Q from Plan(s) … otherwise known as R Street, Suburb P in the Northern Territory be paid forthwith to the de facto wife Ms Kellner.

12.

The de facto wife Ms Kellner retain for her sole use and benefit the following investments:

(a) Motor vehicle 1 Northern Territory registration …;

(b) all of her right, title and interest in S Pty Ltd;

(i) National Australia Bank BSB … Account …;

(ii) National Australia Bank BSB … Account …;

(d) all jewellery within her possession; and

(e) all of her member entitlements in Host Plus member number …

13.

The de facto wife Ms Kellner do all acts and things necessary to remove the de facto husband’s name Mr Kellner and the intervener’s name Ms King from the following bank accounts and the de facto wife Ms Kellner do retain any funds standing to their credit:

(a) Bank SA Complete Freedom Account …;

(b) Bank SA Account ….

14.

The de facto husband Mr Kellner retain for his sole use and benefit the following investments:

(a) all of his right, title and interest in the Motor vehicle 2 Northern Territory registration …;

(b) all monies standing to the credit in any bank account in the name of the de facto husband;

(c) all of his right, title and interest in Property T Plan(s) … otherwise known as U Street, Suburb V in the Northern Territory SAVE AND EXCEPT that the interest of the de facto husband Mr Kellner in the property at U Street, Suburb V in the Northern Territory is subject to any claim by the de facto wife Ms Kellner and the intervener Ms King arising out of any failure by the de facto husband to pay the sums due to the de facto wife Ms Kellner and the intervener Ms King within the times prescribed in these orders.

15.

SAVE AND EXCEPT for the purpose of providing security for the payments due to the de facto wife Ms Kellner and the intervener MS KING pursuant to these orders the de facto husband Mr Kellner is restrained and an injunction is granted restraining him from dealing with his interest in the property at U Street, Suburb V in the Northern Territory until payment is made in full to the de facto wife Ms Kellner and the intervener Ms King.

16.

The de facto wife Ms Kellner and de facto husband Mr Kellner do all acts and things necessary to complete the 2012, 2013, 2014 and 2015 Kellner Brothers partnership taxation return with all income and liabilities being paid to the de facto husband Mr Kellner solely and the de facto husband Mr Kellner make payment and indemnify the de facto wife Ms Kellner with respect to all or any income for the partnership for the financial years ending 2012, 2013, 2014 and 2015.

17.

The de facto husband Mr Kellner do all acts and things necessary and provide to the de facto wife Ms Kellner all minutes of meetings and any ASIC forms for execution by the de facto wife Ms Kellner resigning her directorship and transferring her 25 ordinary shares in Mr Kellner & Son Pty Ltd to the de facto husband Mr Kellner at the de facto husband’s sole expense.

18.

The de facto husband Mr Kellner indemnify the de facto wife Ms Kellner with respect to the following:

(a) any fees, invoices or debts due or owing to Deloitte Touche Tohmatsu arising from his instruction relating to Mr Kellner & Son Pty Ltd;

(b) any fines, penalties or obligations to the Australia Taxation Office arising from Mr Kellner & Son Pty Ltd;

(d) all monies due and owing as between the second respondent Mr G Kellner and intervener Ms King and Kellner Brothers and/or the de facto husband Mr Kellner and the de facto wife Ms Kellner and the second respondent Mr G Kellner and intervener Ms King.

19.

The de facto husband Mr Kellner meet and pay all liabilities and indemnify the de facto wife Ms Kellner from all funds owing to the Australia Taxation Office arising from the capital gains tax attributable to the de facto husband Mr Kellner from the sale of the following real estates:

(a) Property W from Plan(s) … otherwise known as X Street, Suburb K in the Northern Territory;

(b) Property Z from Plan(s) S20110/225E otherwise known as AA Street, Suburb BB in the Northern Territory;

(d) Property L from Plan(s) S2005/196A otherwise known as M Street, Suburb K in the Northern Territory.

20.

The de facto wife Ms Kellner meet and pay all liabilities and indemnify the de facto husband Mr Kellner from all funds owing to the Australian Taxation Office arising from the capital gains tax attributable to the de facto wife Ms Kellner from the sale of the following real estates:

(a) Property Q from Plan(s) … otherwise known as R Street, Suburb P in the Northern Territory;

(b) Property Z from Plan(s) … otherwise known as AA Street, Suburb BB in the Northern Territory;

(d) Property N from Plan(s) … otherwise known as O Street, Suburb P in the Northern Territory.

21.

Unless otherwise specified in this order and except for the purpose of enforcing the payment of money due under this order or any subsequent order:

(a) each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(b) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.

22.

Save as to the question of costs the Initiating Application filed by the de facto wife on 17 October 2012 is dismissed and removed from the active pending cases list.

23.

Any application for costs to be listed for hearing on a date to be advised after the Docket Registrar has received a written request for such hearing allowing the parties not less than fourteen [14] days’ notice.

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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