KNIGHTSBRIDGE & KNIGHTSBRIDGE - [2010] FamCA 659

FAMILY COURT OF AUSTRALIA

KNIGHTSBRIDGE & KNIGHTSBRIDGE

[2010] FamCA 659

FAMILY LAW – PROPERTY – Just & equitable – Add-backs – Spousal maintenance

Family Law Act 1975 (Cth) ss 72(1), 74(1), 75(1), 75(2), 79(1), 79(4)

Babrow & Rackley [2010] FamCA 508
Baldachino & Hanas [2010] FamCA 234
Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144
Knightsbridge & Knightsbridge [2009] FamCA 694
NHC & RCH (aka Chorn & Hopkins) [2004] FamCA 633
Pastern & Pastern [2007] FamCAFC 620
Pittman & Pittman [2010] FamCAFC 30
Robb & Robb (1995) FLC 92-555
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Ms Knightsbridge

RESPONDENT:

Mr Knightsbridge

FILE NUMBER:

CAC

1925

2007

DATE DELIVERED:

3 August 2010
Orders amended pursuant to the Slip Rule on 17 August 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks ACJ

HEARING DATE:

7 & 8 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A. Tonkin

SOLICITOR FOR THE APPLICANT:

Evans Yeend Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr T. Hodgson

SOLICITOR FOR THE RESPONDENT:

Nicholl & Co Lawyers

Orders

IT IS ORDERED THAT:

The wife, Ms Knightsbridge, be declared the owner both at law and in equity of the following:
a)The property known and situate at V, ACT;
b)All superannuation in the wife’s name; and
c)The Camry motor vehicle.
That within seven days of the date of these orders the husband, Mr Knightsbridge, sign all documents to effect a transfer of the registration of the Camry motor vehicle to the wife, such cost to be borne by the husband.
Within 28 days of the date of these orders the husband pay to the wife the sum of $175,500 by way of property settlement.
Pursuant to s 77A(1) of the Family Law Act 1975 (Cth), within 28 days of the date of these orders the husband pay to the wife the sum of $25,000 by way of spousal maintenance.
The husband be declared the owner both at law and in equity of the following:
d)The property known and situate at W, NSW;
e)The property known and situate at B, NSW (Folio Identifier …);
f)All superannuation in the husband’s name;
g)The Landcruiser motor vehicle; and
h)The commercial entities known as the Knightsbridge Group.
Within 21 days of the date of these orders, the wife do all such things and sign all such documents necessary to transfer to the husband all her right, title and interest in B property, NSW, provided that the husband shall hereinafter, indemnify and keep the wife indemnified in respect of all claims, calls and liabilities and all government rates, taxes and outgoings with respect to the said real property.
Within 28 days of the date of these orders the wife will do all acts and things and sign all documents necessary to effect her resignation as director, and any other position held, in the group of companies and trusts known as the Knightsbridge Group, but will first if called upon to do so, vote at…

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 KNIGHTSBRIDGE & KNIGHTSBRIDGE

Details

AGLC: KNIGHTSBRIDGE & KNIGHTSBRIDGE [2010] FamCA 659
Case: [2010] FamCA 659
Decision Date: 3 August 2010 Orders amended pursuant to the Slip Rule on 17 August 2010

CaseChat Overview and Summary

The case of Knightsbridge & Knightsbridge involved a dispute between a wife, Ms Knightsbridge, and a husband, Mr Knightsbridge, concerning the division of their property and spousal maintenance. The matter was heard by Faulks ACJ.

The court was required to determine the ownership of various assets, including real estate, superannuation, vehicles, and commercial entities, and to make orders for property settlement and spousal maintenance. The court also had to address the process for the sale of a specific property and the allocation of sale proceeds, including provisions for capital gains tax.

The court's reasoning led to a detailed division of the parties' assets and liabilities. The wife was declared the owner of certain properties, superannuation, and a motor vehicle, and was to receive a lump sum payment for property settlement and spousal maintenance. The husband was declared the owner of other properties, superannuation, a motor vehicle, and commercial entities. The court outlined a comprehensive procedure for the sale of the B, NSW property, including the appointment of agents and solicitors, and specified how the proceeds were to be distributed, with a particular focus on capital gains tax liabilities and the ultimate percentage division of net assets between the parties. The orders also included significant indemnity provisions for the wife concerning liabilities related to the Knightsbridge Group and the W, NSW property. In instances of non-compliance with the orders, a Registrar of the Family Court was appointed to execute necessary documents or actions.

Orders

Orders of the court

IT IS ORDERED THAT:

The wife, Ms Knightsbridge, be declared the owner both at law and in equity of the following:

a) The property known and situate at V, ACT;

b) All superannuation in the wife’s name; and

c) The Camry motor vehicle.

That within seven days of the date of these orders the husband, Mr Knightsbridge, sign all documents to effect a transfer of the registration of the Camry motor vehicle to the wife, such cost to be borne by the husband.

Within 28 days of the date of these orders the husband pay to the wife the sum of $175,500 by way of property settlement.

Pursuant to s 77A(1) of the Family Law Act 1975 (Cth), within 28 days of the date of these orders the husband pay to the wife the sum of $25,000 by way of spousal maintenance.

The husband be declared the owner both at law and in equity of the following:

d) The property known and situate at W, NSW;

e) The property known and situate at B, NSW (Folio Identifier …);

f) All superannuation in the husband’s name;

g) The Landcruiser motor vehicle; and

h) The commercial entities known as the Knightsbridge Group.

Within 21 days of the date of these orders, the wife do all such things and sign all such documents necessary to transfer to the husband all her right, title and interest in B property, NSW, provided that the husband shall hereinafter, indemnify and keep the wife indemnified in respect of all claims, calls and liabilities and all government rates, taxes and outgoings with respect to the said real property.

Within 28 days of the date of these orders the wife will do all acts and things and sign all documents necessary to effect her resignation as director, and any other position held, in the group of companies and trusts known as the Knightsbridge Group, but will first if called upon to do so, vote at any meetings of members and directors thereof in favour of such resolutions as the husband may direct consistent with her duty as a director.

Simultaneously with the preceding order, the wife will do all acts and things and will prepare and execute in favour of the husband a transfer of the whole of her right, title and interest in her shares in the Knightsbridge Group and shall do all acts and things necessary to give effect thereto.

Within seven days of receipt of the wife’s resignation of director and transfer of shareholding of the wife in the Knightsbridge Group, the husband will register the resignation of the directorship and transfer of shareholding of the wife with the Australian Securities Investment Commission and table a meeting of directors and shareholders in respect of the same.

10.

Simultaneously with the preceding order, the wife will do all acts and things and execute all necessary documents to assign to the husband the whole of the wife’s right, title and interest in any loan account with the Knightsbridge Group and the husband thereafter discharge and release the wife from any liability howsoever arising in relation to the loan account, and indemnify and keep indemnified the wife against any and all manner of actions, suits, causes of actions, arbitrations, debts, dues, costs, interests and demands whatsoever both at law and in equity which the husband and the Knightsbridge Group now has or may have at any time hereafter.

11.

The husband will indemnify the wife and keep her indemnified in respect of all liabilities which the husband may have whether now or in the future and whether alone, jointly or severally with the wife and/or any other person or company to any creditor of the Knightsbridge Group pursuant to any guarantee or indemnity or in any other matter howsoever arising in respect of any liability of the Knightsbridge Group.

12.

The husband will be solely responsible for and indemnify the wife in respect of any liability to pay tax including income tax, Goods and Services tax, Capital Gains tax, penalty tax and interest which may arise in the future in respect of any tax return lodged on behalf of the wife in relation to the Knightsbridge Group or in respect of any transaction of the Knightsbridge Group pursuant to these orders.

13.

Out of abundance of caution, the husband will indemnify and keep indemnified the wife in respect of any outgoings on the W, NSW property as and from the date of these orders.

14.

If the husband fails to pay the sums of $175,500 and $25,000 as ordered, within 28 days of the date of these orders both parties do all acts and things to effect the sale the property known as and situate at B, NSW in accordance with the immediately following order, and upon sale, the proceeds to be applied as follows:

a) To the discharge of sales costs, agents commission and legal fees with respect to the conveyance;

b) To pay any rates and usual outgoings on the property;

c) An amount of $50,000 to be invested in the joint names of the parties in accordance with these orders on account of CGT payable for the sale of the property;

d) The balance of the proceeds to be distributed to the parties, such that the wife receives 52 per cent of the total net assets of the parties and the husband receives 48 per cent of the net assets of the parties calculated by substituting the sale price of the B, NSW property (less the costs stipulated in 13(a) & (b) & (c)) for the figure there for in the property pool referred to in [41] of my Judgment.

15.

To effect the sale of the B, NSW property in accordance with the preceding order, both parties will do as follows:

a) Within seven days of the date of these orders, execute an agency agreement with a real estate agent as agreed in writing by the parties and failing agreement an agent as nominated by the wife;

b) Within seven days of the wife selecting the listing agent both parties will do all acts and things, and sign all necessary documents to retain the said agent as the listing agent, and will authorise that agent to commence the listing of the B, NSW property for private treaty sale;

c) The parties will agree in writing as to the listing price of the B, NSW property and failing agreement, the wife will nominate the listing price;

d) In the event that the B, NSW property does not reach the listing price during the sale period, both parties will accept any sale price offered on the property not more than $15,000 below the nominated listing price, or such other price as agreed between the parties in writing;

e) Both parties will retain a solicitor to conduct the sale of the B, NSW property not otherwise acting on behalf of the parties in relation to the current proceedings, as agreed between the parties in writing, and failing agreement, the wife will nominate a solicitor and the parties direct and authorise those solicitors to distribute the proceeds of the sale of the B, NSW property in accordance with these orders;

f) The parties will ensure that the nominated listing agent is supplied a set of keys to the B, NSW property and that the property is made available to the listing agent for all open for inspection times and such other reasonable times as requested by the agent;

g) Both parties will comply with all reasonable directions of the listing agent as to the sale of the B, NSW property including the agent’s instructions to clean the property in readiness for sale and during the sale period, and to keep all gardens, lawns and outdoors areas in presentable and saleable condition.

16.

All parties are restrained from encumbering the B, NSW property pending the completion of the sale.

17.

The $50,000 from the sale of the B, NSW property allocated for CGT pursuant to these orders will be deposited into joint interest bearing account in the name of the husband and the wife and will not be released unless as agreed between the parties in writing or to be paid to the Commissioner of Taxation to be applied to the discharge of any CGT liability arising from the sale of the B, NSW property.

18.

If the funds held on account of CGT in accordance with these orders are in excess of the CGT liability, the balance of those said funds will be released to as to 52 per cent to the wife and 48 per cent to the husband, as will any interest accumulated on the account in the same proportions, and in the event at the funds are deficient to discharge the CGT liability, the husband and the wife will be responsible for the payment of the remaining liability to the Commissioner of Taxation in the proportions of 52 per cent to the wife and 48 per cent to the husband.

19.

If the husband or the wife should fail within seven days after the periods nominated in these orders above (on the certification in writing by either party or their respective solicitors that either party has so failed) to execute (or sign) any document or to perform any action required in relation to such sale, then pursuant to s 106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia in Canberra is appointed to sign such documents or perform such action in place of either party.

20.

Otherwise, each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control.

21.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

22.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

23.

All extant applications, save as to any fresh application on the question of costs, are discharged.

24.

The matter is removed from the Pending Cases Inventory.

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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