Konig and Konig - [2008] FMCAfam 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KONIG & KONIG

[2008] FMCAfam 213

FAMILY LAW – Property – valuation of property – parties contributions – section 75(2) factors – just and equitable.

Family Law Act 1975 (Cth) ss.72, 74, 75(2), 79(4)(a)-(c)

In the Marriage of Omacini (2005) 33 FamLR 134; [2005] FamCA 195

OS v PS [2007] FamCA 1180
Russell v Russell (1999) FLC 92-877

Applicant:

MS KONIG

Respondent:

MR KONIG

File Number:

DNM 484 of 2006

Judgment of:

Lucev FM

Hearing dates:

29 & 30 October 2007

Date of Last Submission:

30 October 2007

Delivered at:

Sydney (by Scarlett FM by telephone link to Darwin)

Delivered on:

14 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms J Holtham

Solicitors for the Applicant:

David Story

Respondent:

Self Represented

ORDERS

(a)That the Husband, Mr Konig, have sole occupancy and exclusive possession of the property at Property H, and pay to the Wife, Ms Konig, the sum of $145,000.00 by 4.00 p.m. on 31 May 2008.
(b)The Wife and Husband do all acts and things required and sign all documents necessary to transfer the Wife’s interest in the property at Property H to the Husband with all expenses associated with the transfer be paid by the Husband and subject to the payment of the sum of $145,000.00 referred to in order 1(a).
If the sum referred to in order 1(a) is not paid by the time therein specified then the property at Property H be sold on the following conditions:
(a)that the property be listed for private sale and the Wife and Husband shall forthwith do all acts and things required and sign all documents necessary to effect a private sale of the property and by way of consequential agreement for the purpose of effecting a sale;
(b)the listing price of the property shall be as agreed between the parties and if there is no agreement then as advised by a valuer nominated by the Chief Executive Officer of the Real Estate Institute of the Northern Territory;
(c)that the property shall be listed for sale by private treaty with such an agent or on such terms as may be agreed between the parties and failing agreement as nominated by the Chief Executive Officer of the Real Estate Institute of the Northern Territory;
(d)
in the event that the property is not sold by or before a date

12 months from the date of this order then either party may give notice to the other in writing that he or she requires the property to be sold by public auction and in that event the property is to be sold by public auction at a reserve price to be agreed upon between the parties or failing agreement as determined by a valuer as agreed between the parties. If the parties cannot agree to a valuer then as appointed by the Chief Executive Officer of The Real Estate Institute of the Northern Territory, and upon the terms and conditions set out in the following paragraphs…

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 Konig and Konig

Details

AGLC: Konig and Konig [2008] FMCAfam 213
Case: [2008] FMCAfam 213
Decision Date: 14 March 2008

CaseChat Overview and Summary

In the matter of Konig and Konig, the Family Court of Australia was tasked with resolving a property dispute between the husband and wife. The husband sought sole occupancy and exclusive possession of a property, while the wife contested his claim. The court was also required to determine the ownership of various assets, including a motor vehicle, ski boat, and business, as well as the allocation of household contents. Additionally, the court needed to address spousal maintenance and the division of liabilities and assets. The legal issues encompassed the interpretation of property rights, asset distribution, spousal support, and compliance with statutory provisions.

The court's reasoning involved a detailed analysis of the evidence presented regarding the property and assets, as well as the financial circumstances of both parties. It was determined that the husband would have sole occupancy of the property, with the wife receiving a payment of $145,000. If this payment was not made, the property was to be sold under specific conditions. The husband was also required to transfer certain assets to the wife and indemnify her from certain liabilities. The court found that the husband should retain ownership of certain vehicles and the business, while the wife was to retain other assets. The court further ordered that the husband provide spousal maintenance to the wife for a period of 12 months, contingent upon her obtaining full-time employment.

The outcome of the case resulted in several specific orders. The husband was granted sole occupancy and exclusive possession of the property, with a requirement to pay the wife $145,000. If this payment was not made, the property was to be sold under detailed terms. The husband was also ordered to transfer specific assets to the wife and to indemnify her from certain financial liabilities. Ownership of other assets was allocated to the husband, and the wife was to retain other property. Spousal maintenance was set at $150 per week for 12 months, ceasing if the wife obtained full-time employment. Additionally, the court empowered a Registrar to sign documents on behalf of any party who refused to do so, in accordance with the Family Law Act 1975.

The final orders included the transfer of sole occupancy and exclusive possession of the property to the husband, contingent on the payment of $145,000 to the wife. If this payment was not made, the property was to be sold under the court's conditions. The husband was also to transfer specific assets to the wife and indemnify her from certain financial liabilities. Ownership of other assets was allocated to the husband, while the wife retained other property. Spousal maintenance was set at $150 per week for 12 months, ceasing if the wife obtained full-time employment. The court retained the authority to enforce compliance with these orders, including the ability to sign documents on behalf of any party who failed to do so.

Orders

Orders of the court

(a) That the Husband, Mr Konig, have sole occupancy and exclusive possession of the property at Property H, and pay to the Wife, Ms Konig, the sum of $145,000.00 by 4.00 p.m. on 31 May 2008.

(b) The Wife and Husband do all acts and things required and sign all documents necessary to transfer the Wife’s interest in the property at Property H to the Husband with all expenses associated with the transfer be paid by the Husband and subject to the payment of the sum of $145,000.00 referred to in order 1(a).

If the sum referred to in order 1(a) is not paid by the time therein specified then the property at Property H be sold on the following conditions:

(a) that the property be listed for private sale and the Wife and Husband shall forthwith do all acts and things required and sign all documents necessary to effect a private sale of the property and by way of consequential agreement for the purpose of effecting a sale;

(b) the listing price of the property shall be as agreed between the parties and if there is no agreement then as advised by a valuer nominated by the Chief Executive Officer of the Real Estate Institute of the Northern Territory;

(c) that the property shall be listed for sale by private treaty with such an agent or on such terms as may be agreed between the parties and failing agreement as nominated by the Chief Executive Officer of the Real Estate Institute of the Northern Territory;

(d)

in the event that the property is not sold by or before a date

12 months from the date of this order then either party may give notice to the other in writing that he or she requires the property to be sold by public auction and in that event the property is to be sold by public auction at a reserve price to be agreed upon between the parties or failing agreement as determined by a valuer as agreed between the parties. If the parties cannot agree to a valuer then as appointed by the Chief Executive Officer of The Real Estate Institute of the Northern Territory, and upon the terms and conditions set out in the following paragraphs hereto;

(e) the following terms and conditions apply to the sale by public auction:

(i) The parties shall employ a listing agent for such sale and agree upon a reserve price but failing agreement as determined by a valuer. If the parties cannot agree to a valuer then the valuer shall be as appointed by the Chief Executive Officer of the Real Estate Institute of the Northern Territory.

(ii) The public auction will take place no later than 8 weeks after the notice referred to in subparagraph (d) above.

(iii) Following the first auction sale of the property, if the property does not reach the reserve price and the parties are subsequently unable to agree to the sale of the property it shall be offered again for sale by public auction with no reserve and in default of agreement between the parties in relation hereto, at a date and time agreed between the parties but no more than 6 weeks after the first auction;

(iv) both parties are at liberty to attend the auction and bid in relation to the property; and

(v) payment shall be made from the gross proceeds in the following order:

1. all costs associated with the conduct of the sale, shall be taken as first payment;

2. the sum of $145,000.00 shall be taken as a second payment and paid to the Wife, Ms Konig; and

3. the balance of the proceeds of the sale shall be paid to the Husband, Mr Konig.

That the Husband transfer to the Wife all his right, title and interest in the 2000 Mitsubishi Magna motor vehicle, and that all expenses associated with that transfer be paid by the Husband.

That the Husband is declared the owner of the:

(a) 2005 Toyota Landcruiser;

(b) ski boat and equipment;

(d) quadbikes and motorcross trailers,

and the Wife shall forthwith sign all documents necessary in order to transfer to the Husband all her right, title and interest in them and that all expenses associated with any transfer be paid by the Husband.

The Husband is declared the owner of the Business trading as IK, and the Wife is hereby declared to have no interest, either at law or in equity, in that Business.

That the Husband shall indemnify the Wife, and keep her indemnified, from any liability whatsoever or howsoever described or incurred in relation to:

(a) ANZ supplementary loan number 4495-23055;

(b) ANZ home loan; and

That otherwise each party is entitled to retain all other the property (including superannuation benefits and entitlements) in their possession or control and each party shall be responsible for all liabilities associated with the property they are entitled to retain pursuant to these orders, provided that the household contents (but not the Wife’s personal items such as clothes or jewellery) shall remain at the property at Property H and are hereby declared to be the property of the Husband.

In the event that either party fails or refuses to sign any document or paper necessary to give effect to these orders then pursuant to s.106A of the Family Law Act 1975 a Registrar of the Court is empowered to sign on behalf of the defaulting party upon written notice for the solicitor of the other party that the defaulting party has neglected or refused to sign such document or paper within 14 days of being requested to do so.

That by way of spousal maintenance the Husband pay to the Wife the sum of $150.00 per week for a period of 12 months from the date of this order, provided that such payment cease forthwith if the Wife obtains full time employment.

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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