Kendrick and Barnwell (No 2) - [2019] FamCA 699

FAMILY COURT OF AUSTRALIA

KENDRICK & BARNWELL (NO. 2)

[2019] FamCA 699

FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable – Where the parties were in a de facto relationship – Where the length of their relationship is disputed but its exact length is not necessary to determine for these proceedings – Where the wife had an interest in a business when the parties commenced living together – Where the parties each contributed to the running of the business – Where there was a dispute about the husband’s commissions and whether he left them for the benefit of the business – Where after a consideration of the property of the parties, their respective contributions, the relevant statutory provisions, and making appropriate adjustments, a just and equitable division of the property of the parties in this matter is 61/39 in favour of the wife.

Duties Act 1997 (NSW)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Hall vHall (2016) FLC 93-709
Sexton v Sexton [2012] FamCAFC 218
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Mr Kendrick

RESPONDENT:

Ms Barnwell

FILE NUMBER:

BRC

2650

2016

DATE DELIVERED:

30 September 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16, 17 & 18 April,

26 & 27 November and
5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Mr Priestley SC

SOLICITOR FOR THE RESPONDENT:

Barry.Nilsson

Orders

That the applicant shall retain as his property absolutely the following:
(i)The real property situated at Town A, more particularly described as Lot … in Deposited Plan … in the State of New South Wales, or any net proceeds of its sale;
(ii)The real property situated at Town B Property 1, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;
(iii)The balance of any bank account operated in his name;
(iv)The motor vehicle 1;
(v)His superannuation entitlements; and
(vi)All other property currently in his possession.
That subject to the obligation imposed upon her by paragraph (3) of these Orders, the respondent shall retain as her property absolutely the following:
(i)The real property situated at Town B Property 2, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;
(ii)The real property situated at Town B Property 3, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;
(iii)The real property situated at Town C Property 1, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;
(iv)Her interest in the real property situated at Town C Property 2, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;
(v)Her interest in the following legal entities:
(i)E Pty Ltd;
(ii)E Investments Pty Ltd;
(iii)Barnwell Family Trust;
(iv)Barnwell Unit Trust;
(v)D Pty Ltd;

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 Kendrick and Barnwell (No 2)

Details

AGLC: Kendrick and Barnwell (No 2) [2019] FamCA 699
Case: [2019] FamCA 699
Decision Date: 30 September 2019

CaseChat Overview and Summary

This matter came before Forrest J of the Family Court of Australia concerning the division of property between the applicant, Kendrick, and the respondent, Barnwell. The dispute involved the allocation of various real estate holdings, bank accounts, motor vehicles, superannuation entitlements, and interests in legal entities.

The court was required to determine how the parties' accumulated assets and liabilities should be divided between them. This involved considering the nature and value of each asset and liability, and making orders for their distribution, including any necessary financial adjustments between the parties. The court also had to address the tax implications and stamp duty liabilities arising from the property transfers.

Forrest J made orders for the division of property, with the applicant retaining specific real estate, bank accounts, a motor vehicle, and his superannuation entitlements, along with all other property in his possession. The respondent was ordered to retain other real estate holdings, interests in various legal entities, her bank accounts, superannuation, and all other property held in her name. Crucially, the respondent was ordered to pay the applicant a sum of $1,049,550 by a specified date and to indemnify the applicant against a particular debt owed to the Barnwell Unit Trust. Further orders stipulated that each party would be solely responsible for their respective debts and liabilities, including taxation liabilities arising from the property transfers, and that stamp duty would be paid by the transferee party. The court also appointed a Registrar to execute documents if either party failed to comply with the orders.

Orders

Orders of the court

That the applicant shall retain as his property absolutely the following:

(i) The real property situated at Town A, more particularly described as Lot … in Deposited Plan … in the State of New South Wales, or any net proceeds of its sale;

(ii) The real property situated at Town B Property 1, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;

(iii) The balance of any bank account operated in his name;

(iv) The motor vehicle 1;

(v) His superannuation entitlements; and

(vi) All other property currently in his possession.

That subject to the obligation imposed upon her by paragraph (3) of these Orders, the respondent shall retain as her property absolutely the following:

(i) The real property situated at Town B Property 2, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;

(ii) The real property situated at Town B Property 3, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;

(iii) The real property situated at Town C Property 1, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;

(iv) Her interest in the real property situated at Town C Property 2, more particularly described as Lot … in Deposited Plan … in the State of New South Wales;

(v) Her interest in the following legal entities:

(i) E Pty Ltd;

(ii) E Investments Pty Ltd;

(iii) Barnwell Family Trust;

(iv) Barnwell Unit Trust;

(v) D Pty Ltd;

(vi) The balance of any bank account operated in her name;

(vii) Her interests in superannuation; and

(viii) All other property held in her name, possession or control as at the date of these Orders.

That the respondent shall pay to the applicant the sum of $1,049,550 (one million, forty-nine thousand, five hundred and fifty dollars) before 25 December 2019.

That the respondent shall indemnify and hold the applicant indemnified against any and all liability to the Barnwell Unit Trust in respect of the liability for the sum of $50,000 that is recorded in the balance sheet of that entity as an asset of that trust being a debt owed by the applicant to that trust.

That from the date of these Orders, unless otherwise specified:

(5.1) each party shall be solely entitled to the exclusion of the other to all property and/or financial resources in the possession of such party as at the date of these orders including but not limited to any jewellery, furniture, furnishing, appliances, shares, motor vehicles, debtors, choses in action and any other property and/or financial resources, whether realty or personally, wheresoever situate and/or of whatsoever kind presently in the possession of or registered in the name of that party;

(5.2) monies standing to the credit of the parties in any bank account standing in their sole name as at the date of these Orders will be the property of the party in whose name such bank account is held.

That each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stands will be deemed to be the sole owner and beneficiary of such policy to the exclusion of the other.

That each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

That save for the debt dealt with in paragraph (4) of these Orders, the parties shall be and remain solely responsible for each and every debt/liability standing in their separate names respectively as at the date of these Orders, including but not limited to credit card liabilities and debts owing to the Australian Taxation Office, and indemnify the other party and hold them harmless in relation to any such debt/liability.

That each party shall be solely liable for and indemnify the other against any taxation liability arising from the transfer to them of any property pursuant to these Orders, including but not limited to capital gains tax incurred upon the sale of any property subsequent to these Orders.

10.

That any duty levied pursuant to the Duties Act 1997 (NSW) payable on transactions arising from these Orders or any documents executed pursuant to these Orders be paid by the transferee party receiving the benefit of same.

11.

That the parties shall comply with all requisitions issued by Revenue NSW in relation to any document executed or transaction entered into pursuant to, or to put into effect, by these Orders. In default of either of the parties complying with any requisitions so issued within fourteen (14) days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules 2004 (Cth).

12.

That in the event that any party to these Orders refuses or neglects to comply with any or all of the provisions of these orders, the Senior Registrar or a Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to execute all deeds and documents in the name of the respondent and/or the applicant and to do all acts and things necessary to give validity and operation to these Orders and for the purposes of these Orders, an affidavit by either party or their respective solicitors is deemed to be sufficient evidence of non-compliance.

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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