King and Hamidou - [2016] FamCA 889

FAMILY COURT OF AUSTRALIA

KING & HAMIDOU

[2016] FamCA 889

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were married for approximately fourteen years – Where it was agreed that the Court should take a “one pool” approach – Where each party seeks to retain the parties’ business enterprise – Whether the Court should accept the enterprise’s value based on the amount the husband is willing to pay – Where the Court accepts the fair market value as assessed by the single expert – Where the parties each made substantial direct and indirect contributions to the property pool – Where the wife has been consistently involved in the enterprise for twenty-seven years – Where the husband was involved in various business interests during the marriage – Where the enterprise’s financial position has improved under the management of the wife post-separation – Where the Court finds the parties’ contributions should be assessed at fifty-two and a half per cent to the wife and forty-seven and a half per cent to the husband – Where the Court finds section 75(2) factors favour an additional adjustment of two and a half per cent to the husband – Orders made for the wife to retain the business enterprise – Alternate orders made for the husband to acquire the enterprise should the wife be unable to retain it.

Evidence Act 1995 (Cth) s 136
Family Law Act 1975 (Cth) ss 75, 79

Bircher & Bircher and Anor [2016] FamCAFC 123
Bishop & Bishop (2013) 93-553
Blake & Blake [2007] FamCA 10
Bonnici & Bonnici (1992) FLC 92-272
Cordelia Holdings Pty Ltd v Newskey Investments Pty Ltd [2004] FCAFC 48
Goold v Commonwealth of Australia and Anor; Rootsey v Commonwealth of Australia and Anor (1993) 114 ALR 135
Harriott & Arena [2016] FamCAFC 69
Kowaliw & Kowaliw (1981) FLC 91-092
Mayne & Mayne (2011) FLC 93-479
Omacini & Omacini [2005] FamCA 195
Stoddard & Glover [2016] FamCA 674
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Ms King

RESPONDENT:

Mr Hamidou

FILE NUMBER:

WOC

1015

2013

DATE DELIVERED:

21 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

6 - 10 June 2016 and by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Johnson Horsley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Dignan & Hanrahan Solicitors & Attorneys

Orders

The wife is to pay to the husband, or as he may direct in writing, the sum of $1 299 740.50 within a period of three (3) months from the date of these Orders.
The wife is to retain the following:
(a)The property situate at and known as T Road, Suburb F (“the F property”);
(b)       Furniture and contents of the F property;
(c)       BMW … motor vehicle registration number …;
(d)       The wife’s interest in her Care Superannuation Fund.
(e)The business known as D Pty Ltd (“D Business”), including the land on which the D Business operates;
(f)…

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 King and Hamidou

Details

AGLC: King and Hamidou [2016] FamCA 889
Case: [2016] FamCA 889
Decision Date: 21 October 2016

CaseChat Overview and Summary

This matter concerned the division of property between a wife and a husband, presided over by McClelland J. The dispute involved the distribution of various assets, including real estate, motor vehicles, bank accounts, superannuation interests, and a business, as well as the allocation of associated liabilities.

The court was required to determine the specific terms of the property settlement, including the quantum of any monetary payment to be made between the parties, the allocation of specific assets and liabilities to each party, and the conditions under which certain assets might be transferred. The orders also addressed the consequences of non-compliance with the primary payment and transfer provisions.

McClelland J ordered the wife to pay a sum of $1,299,740.50 to the husband within three months, retaining certain specified assets including the F property, furniture and contents, a BMW, her superannuation fund, and the D Pty Ltd business and its associated land and bank accounts. The wife was also to indemnify the husband against specific mortgages and her personal taxation liability. Conversely, the husband was to retain the U Road property, his furniture and contents, several motor vehicles, a boat, various bank accounts, a loan, and his superannuation fund, and to indemnify the wife against the mortgage on the U Road property and his personal credit card and bank accounts. In the event of the wife's failure to comply with the initial payment order, the husband was to pay a lesser sum to the wife and receive the D Pty Ltd business and associated accounts. Further provisions were made for the sale of the business should the husband fail to comply with the alternative payment order. Each party was to retain other property not specifically mentioned, free from claim by the other, and to indemnify each other against existing liabilities.

Orders

Orders of the court

The wife is to pay to the husband, or as he may direct in writing, the sum of $1 299 740.50 within a period of three (3) months from the date of these Orders.

The wife is to retain the following:

(a) The property situate at and known as T Road, Suburb F (“the F property”);

(b) Furniture and contents of the F property;

(d) The wife’s interest in her Care Superannuation Fund.

(e) The business known as D Pty Ltd (“D Business”), including the land on which the D Business operates;

(f) Commonwealth Bank trading account ending #0706;

(g) Commonwealth Bank D Business cheque account ending #0765;

(h) Commonwealth Bank Funding Grant ending #4255;

(i) Commonwealth Bank D Business rent account ending #0115; and

(j) Credit loan account with D Business.

The wife is to indemnify and keep the husband indemnified in respect to the following:

(a) Mortgage secured over the F property (Commonwealth Bank loan account ending #4118);

(b) D Business property loan (Commonwealth Bank loan account ending #5084);

(d) Commonwealth Bank business MasterCard account ending #0411; and

(e) The wife’s 2015 personal taxation liability.

The husband is to retain the following:

(a) The property situate at and known as U Road, Suburb DD (“the U Road property”);

(b) Furniture and contents in the husband’s possession;

(d) BMW …motor vehicle registration number …;

(e) … motor bike registration number …;

(f) Bike trailer;

(g) Toyota … motor vehicle registration number…;

(h) Boat registration number …;

(i) ANZ Etrade account ending #3455;

(j) Westpac Classic account ending #3293;

(k) Commonwealth Bank C Pty Ltd account ending #4550;

(l) NAB account ending #6766;

(m) Loan to Mr PP for Van; and

(n) Husband’s interest in his TT Superannuation Fund.

The husband is to indemnify and keep the wife indemnified in respect to the following:

(a) Mortgage secured over the U Road property (account number ending #5773);

(b) The husband’s ANZ personal credit card; and

The alternative

In the event that the wife fails to comply with Order (1) above, the husband is to pay to the wife, or as she may direct in writing, the sum of $865 306.50 within three (3) months of the wife’s failure to comply with Order (1).

Simultaneous with the payment by the husband to the wife set out in Order (6) above, the wife is to do all acts and things and sign all documents necessary to transfer to the husband the following:

(a) The business known as D Pty Ltd (“D Business”), including the land on which the D Business operates;

(b) Commonwealth Bank trading account ending #0706;

(d) Commonwealth Bank Funding Grant ending #4255;

(e) Commonwealth Bank D Business rent account ending #0115; and

(f) Credit loan account with D Business.

Simultaneous with the payment by the husband to the wife set out in Order (6) above, the husband is to indemnify and keep the wife indemnified in respect to the following:

(a) D Business property loan (Commonwealth Bank loan account ending #5084);

(b) D Business business loan (Commonwealth Bank loan account ending #1703); and

In the event that the husband fails to comply with Order (6) above, the parties are each to submit a proposed Minute of Order to my chambers within fourteen (14) days of the husband’s failure to comply with Order (6), setting out their proposal for:

(a) The sale of the business known as D Pty Ltd (“D Business”), including the land on which the D Business operates; and

(b) The division of the proceeds of sale (after payment of the costs of the sale) to reflect the Court’s determination of the proceedings.

10.

Other than as provided for in these Orders, each party shall retain free from any claim from the other party all other property, furniture, furnishings, savings, businesses, motor vehicles, superannuation entitlements and other financial resources currently in that parties name, possession or control as at the date of these Orders and each party shall also indemnify the other party in relation to any liabilities or debts payable by that party as at the date of these Orders and keep such party indemnified from any such claim.

11.

In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to said Orders.

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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