Kovacs and Kovacs - [2009] FMCAfam 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOVACS & KOVACS

[2009] FMCAfam 323

FAMILY LAW – Property settlement – credit issues – whether the husband’s conduct amounted to “waste” behaviour – issues of disclosure – contributions – consideration of factors under s.75(2).

Family Law Act 1975, s.75(2)

Black & Kellner (1992) FLC 92-287
C & C (2005) FCAFC 429
Fosbery (2009) FAMCAFC 51
Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Kowaliw (1981) FLC 92-092
Steinbrenner (2008) FAMCAFA 193
Weir (1993) FLC 92-338

Applicant:

MS KOVACS

Respondent:

MR KOVACS

File Number:

SYM 8453 of 2006

Judgment of:

Baumann FM

Hearing dates:

16 & 17 July 2008

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

9 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr Maiden SC

Solicitors for the Applicant:

Holt & Allen

Counsel for the Respondent:

Mr Foster

Solicitors for the Respondent:

H Danalis & Co

ORDERS

That the parties shall sign all documents and do all things necessary to place the property situated at and known as Property M in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier [1] (hereinafter referred to as "the Property M property") for sale by private treaty with [M] First National, at a price of $730,000 and to instruct Messrs Vizzone Ruggero & Associates of Botany Road, Mascot to act on the sale as Solicitors.
That the parties shall sign all documents and do all things necessary to place the property situated at and known as Property V in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier [9] (hereinafter referred to as "the Property V property") on the market for sale by private treaty with LJ Hooker, at a price as agreed upon between the parties or in default of agreement at a price of $280,000 and to instruct Messrs Morton & Harris of 88 Kinghorn Street, Nowra to act on the sale as Solicitors.
That in the event that either the Property M or Property V properties are not sold by private treaty within sixty (60) days of the date of these orders then the parties shall forthwith do all acts and things and execute all deeds instruments and writings necessary to cause the property to be sold by public auction and in particular to:
(a)Place the Property M and/or Property V property with such Real Estate Agent ('auctioneer') as may be agreed between the parties or in default of agreement with the Real Estate Agent appointed by the President for the time being of the Real Estate Institute of New South Wales;
(b)Execute all documents requested by the auctioneer for the sale of the property;
(c)Instruct the auctioneer to place a reserve price on the property for the purpose of the auction as agreed between the parties or in default of agreement at an amount nominated by the Real Estate Agents appointed by…

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 Kovacs and Kovacs

Details

AGLC: Kovacs and Kovacs [2009] FMCAfam 323
Case: [2009] FMCAfam 323
Decision Date: 9 April 2009

CaseChat Overview and Summary

The case of Kovacs and Kovacs involved the division of property between the parties in the Family Court of Australia. The dispute centred on the equitable distribution of jointly held assets following the breakdown of the marriage. The court was required to determine the sale and distribution of specific properties and other assets between the parties.

The legal issues before the court included the sale of two properties, the distribution of proceeds from the sale of one property, and the declaration of ownership of another property. The court needed to address how to facilitate the sale of the properties, the division of sale proceeds, and the allocation of personal property and other assets between the parties. Additionally, the court considered the role of the Real Estate Institute of New South Wales in the sale process and the consequences of any party's refusal to execute necessary documents.

In its reasoning, the court mandated the sale of two properties, Property M and Property V, by private treaty or public auction if necessary. For Property M, the sale proceeds were to be distributed first to cover real estate agent's commission and legal costs, with the remaining balance split between the parties according to a specific formula. For Property V, the proceeds were to be split equally. The court also declared the wife as the sole owner of Property R and outlined the distribution of personal property and other assets between the parties. The court emphasised that each party would retain responsibility for their personal assets and liabilities. If either party failed to execute necessary documents, the court authorised the Registrar or a Deputy Registrar to do so on their behalf. The orders also provided for the possibility of restoring the matter for enforcement or interpretation purposes.

The court issued several orders, including directives for the sale of properties, distribution of sale proceeds, and declaration of ownership of specific assets. The orders ensured that the properties were sold in a structured manner, with specific instructions for handling unsold properties and the division of proceeds. The court also clarified the ownership of personal property and outlined the consequences of non-compliance with the orders.

Orders

Orders of the court

That the parties shall sign all documents and do all things necessary to place the property situated at and known as Property M in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier [1] (hereinafter referred to as "the Property M property") for sale by private treaty with [M] First National, at a price of $730,000 and to instruct Messrs Vizzone Ruggero & Associates of Botany Road, Mascot to act on the sale as Solicitors.

That the parties shall sign all documents and do all things necessary to place the property situated at and known as Property V in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier [9] (hereinafter referred to as "the Property V property") on the market for sale by private treaty with LJ Hooker, at a price as agreed upon between the parties or in default of agreement at a price of $280,000 and to instruct Messrs Morton & Harris of 88 Kinghorn Street, Nowra to act on the sale as Solicitors.

That in the event that either the Property M or Property V properties are not sold by private treaty within sixty (60) days of the date of these orders then the parties shall forthwith do all acts and things and execute all deeds instruments and writings necessary to cause the property to be sold by public auction and in particular to:

(a) Place the Property M and/or Property V property with such Real Estate Agent ('auctioneer') as may be agreed between the parties or in default of agreement with the Real Estate Agent appointed by the President for the time being of the Real Estate Institute of New South Wales;

(b) Execute all documents requested by the auctioneer for the sale of the property;

(c) Instruct the auctioneer to place a reserve price on the property for the purpose of the auction as agreed between the parties or in default of agreement at an amount nominated by the Real Estate Agents appointed by the President for the time being of the Real Estate Institute of New South Wales;

(d) Pay to the auctioneer equally any sums requested for advertising expenses in relation to the auction;

(e) Co-operate in every way with the auctioneers in relation to the auction of the property;

(f) Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached ;

(g) Execute contracts for sale;

(h) Execute all other documents necessary to complete the sale.

Should the Property M property not be sold by auction the parties shall do all things reasonably required of them by the selling agent to obtain a completed sale and shall at the expiration of three (3) months from the date of such unsuccessful auction or such other period as shall be agreed to by the parties do all acts and things and execute all deeds and documents, instruments and writings necessary to submit the property for further public auction in which event the provisions of this agreement applicable to the sale of the property by public auction shall apply and subject to the expiration of three (3) months from each unsuccessful submission of the property by public auction, the provisions of Order 3 shall apply mutatis mutandis in relation to such further auction.

That the proceeds of sale of the Property M property shall be distributed in the following manner and priority:-

(a) Real Estate Agent's commission and associated expenses;

(b) Legal costs and disbursements on sale;

(c)

The balance forwarded to the solicitor acting for the husband

Mr H Danalis of H Danalis & Co. Solicitors, to be held in trust for the husband and wife pending operation of Clause 6 herein;

That upon receipt of the net proceeds of sale of the Property M property the husband’s solicitor is to pay:

(a) to the wife, or as she directs 50% of the net proceeds of sale of the Property M property together with the sum of $108,133.00.

(b) as to the balance then remaining to the husband.

The proceeds of sale of the Property V property shall be distributed in the following manner and priority:-

(a) Real Estate Agent’s commission and associated expenses;

(b) Legal costs and disbursements on sale;

The wife shall be declared the sole legal and beneficial owner of the property in Property R to the exclusion of the husband;

That unless otherwise specified in these Orders each party shall be solely entitled to retain and be declared the sole beneficial owner to the exclusion of the other of all personalty, property and chattels of whatsoever nature and kind including but not limited to superannuation entitlements, shares, bank and building society accounts in the possession custody or control of such party as at the date of these orders and accept responsibility for the liabilities, if any, presently in their name and that they shall indemnify the other party in respect of any such payments;

10.

That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, that the Registrar or a Deputy Registrar of the Family Court of Australia at Sydney be appointed pursuant to a s.106A of the Family Law Act to execute the deed or instrument in the name of that party and do all acts and things necessary to give validity and operation to the deed or instrument.

11.

That either party shall be at liberty to restore the matter for the purpose of enforcement or interpretations of this order upon giving twenty-four (24) hours’ notice to the Court and the other 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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