Khyatt and Kelman - [2014] FCCA 834

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHYATT & KELMAN

[2014] FCCA 834

Catchwords:
FAMILY LAW – Property – quantification of assets and liabilities – liabilities exceed assets – whether parties should share liabilities equally – wanton conduct by one party diminishing assets – failure to make full and frank disclosure.

Legislation:

Family Law Act 1975, ss.75, 79

Stanford [2012] HCA 52, (2012) 293 ALR 70; 47 FamLR 481
Hickey & Hickey & Commonwealth [2003] FamCA 395; (2003) 30 FamLR 355; FLC 93-143
Chang v Su [2002] FamCA 156; (2002) 29 Fam LR 406; FLC 93-117
Briese v Briese (1986) FLC 91-713
Weir & Weir (1993) FLC 92-338; 16 FamLR 154
Sebastian & Sebastian [2013] FamCA 191;
Newman & Newman [2013] FamCA 37;
Watson & Ling [2013] FamCA 57; (2013) 49 Fam LR 303
Baglio & Baglio [2013] FamCA 105;
Bowe &Bateman [2013] FamCA 253;
Alexiou & Alexiou [2012] FamCA 1146;
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Biltoft & Biltoft (1995) 19 Fam LR 39; FLC 92-614
Kowaliw (1981) FLC 91-092; (1981) 7 Fam LR N13
Antmann (1980) FLC 90-908

Applicant:

MS KHYATT

Respondent:

MR KELMAN

File Number:

MLC 10266 of 2012

Judgment of:

Judge Lapthorn

Hearing dates:

29 & 30 August, 16 & 17 October 2013

Date of Last Submission:

11 December 2013

Delivered at:

Brisbane

Delivered on:

28 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Grant

Solicitors for the Applicant:

Zeno Family Lawyers

Counsel for the Respondent:

Mr O’Connell

Solicitors for the Respondent:

Horvat Legal

ORDERS

That within 7 days from the date of these orders the parties do all acts and things and sign all such documents as are necessary to pay from the funds held in trust from the proceeds of sale of the former matrimonial home the sum of $115,000 to the previous owners of the [A] business;
That upon compliance with order (1) herein the parties do all acts and things and sign all such documents as are necessary to enable the balance of the funds held in trust from the proceeds of sale of the former matrimonial home to be released to the wife;
That within 7 days of the date of these orders the parties do all acts and things and sign all such documents as are necessary to enable the funds held on trust from the proceeds of sale of the [P] Property to be released to the wife;
That other than as provided for in Order (1) herein, the husband indemnify and keep indemnified the wife against all liabilities held or arising in his name or any business conducted by or on his behalf;
That other than as provided for in these Orders each party is to retain and be solely entitled to the exclusion of the other to any superannuation entitlements and all other property (including choses-in-action) in the possession and or control of such party.

IT IS NOTED that publication of this judgment under…

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 Khyatt and Kelman

Details

AGLC: Khyatt and Kelman [2014] FCCA 834
Case: [2014] FCCA 834
Decision Date: 28 April 2014

CaseChat Overview and Summary

In the matter of *Khyatt and Kelman*, heard by Judge Lapthorn, the dispute concerned the division of property following the dissolution of a marriage. The orders indicate a disagreement regarding the distribution of funds derived from the sale of the former matrimonial home and another property, as well as the allocation of business-related liabilities and superannuation entitlements.

The court was required to determine how the proceeds from the sale of the former matrimonial home should be distributed, specifically addressing a payment to the previous owners of the "[A] business" and the subsequent release of the remaining balance to the wife. Further, the court needed to decide the disposition of funds held in trust from the sale of the "[P] Property". The husband's liability for business debts and the parties' respective claims to superannuation and other assets were also central to the determination.

Judge Lapthorn ordered that $115,000 from the trust funds of the former matrimonial home be paid to the previous owners of the "[A] business" within seven days. Upon compliance, the remaining balance of those funds was to be released to the wife. Additionally, funds held in trust from the "[P] Property" were to be released to the wife within seven days. The husband was ordered to indemnify the wife against all liabilities held in his name or by his businesses, except as otherwise provided. Finally, each party was to retain their superannuation entitlements and all other property in their possession or control, to the exclusion of the other.

Orders

Orders of the court

That within 7 days from the date of these orders the parties do all acts and things and sign all such documents as are necessary to pay from the funds held in trust from the proceeds of sale of the former matrimonial home the sum of $115,000 to the previous owners of the [A] business;

That upon compliance with order (1) herein the parties do all acts and things and sign all such documents as are necessary to enable the balance of the funds held in trust from the proceeds of sale of the former matrimonial home to be released to the wife;

That within 7 days of the date of these orders the parties do all acts and things and sign all such documents as are necessary to enable the funds held on trust from the proceeds of sale of the [P] Property to be released to the wife;

That other than as provided for in Order (1) herein, the husband indemnify and keep indemnified the wife against all liabilities held or arising in his name or any business conducted by or on his behalf;

That other than as provided for in these Orders each party is to retain and be solely entitled to the exclusion of the other to any superannuation entitlements and all other property (including choses-in-action) in the possession and or control of such party.

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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